source: Caselaw Access Project

author: By the Court. Woodruff, J.

license: Public Domain

text:
    Charles Kohler, Plaintiff and Respondent v. Garret P. Wright, Christopher P. Jones, Christopher Port and Edward Jones, who were impleaded with Edward A. Decker, Defendants and Appellants.
    1. Where, on appeal from a judgment on the decision of a referee, the case states that the cause was submitted, “ the counsel for the defendants admitting that the defendants are liable for the payment of a bill,” which was one of the bills for the payment of which the plaintiff claimed to recover, the defendants on appeal cannot question the correctness of the decision of the referee allowing such payment to the plaintiff, although the defendants, after such submission of the cause, handed to him written points assailing the plaintiffs claim in respect thereto.
    2. As a general rule, all the owners of a vessel who assent to the employment , of the vessel, and share the proceeds of such employment, are prima facie liable for repairs and supplies to the vessel, and 'for the wages of the seamen while the vessel is employed for their benefit.
    3. Where, in such case, the master of a vessel, by the express direction of one of such part owners, pays a sum of money to satisfy the claims of seamen for their wages on a voyage immediately preceding that for which such master is employed—which claim another part owner, who was captain on such previous voyage, states to be correct—the master making such payment is entitled to recover the sum so paid, in an action against all the owners.
    4. Neither the claim of the seamen, nor of the master making such payment, can be defeated by proof of a private arrangement between such owners, . that the wages should be paid out of the share of the earnings belonging to the part owner who was captain on such previous voyage.
    (Before Hoffman and Woodruff, J. J.)
    Heard April 16,
    decided July 7, 1860.
    o This action was brought by the plaintiff to recover from the defendants, as owners of the schooner “William B. Marsh,” for services, and also for moneys paid out for their benefit. He had been mate of the vessel until March, 1856 ; down to which date, one of the part owners, the defendant Decker, was the captain or master. On and after that date, the plaintiff was employed and sailed the vessel as master. While employed as master, the plaintiff paid a' bill to one Francis, for cups and saucers, broom, paints, putty and other small articles, furnished by Francis for the use of the vessel, amounting to $4.95.
    He also paid several small sums claimed by three of the seamen, (Jones, Pattemand Ward,) for wages accrued while Decker commanded the vessel, and due when he left in March, 1856, amounting to $38.54. The proofs showed that the defendant Decker, examined the bills of those three seamen, (which the plaintiff showed him,) and said that they were correct; and that when the seamen demanded their wages, and threatened to libel the vessel therefor, the plaintiff applied to Jones, one of the other owners, for directions, and he instructed him to pay them, and he did so. The defendant Decker, though served with process, did not put in an answer. The other defendants denied the plaintiff's claim. The action was referred to Henry J. Scudder, Esq., before whom it was tried, on and after the l^th of February, 1859.
    The defense was, that one of the owners, Decker, ran the vessel when these wages accrued, on shares, and that by the arrangement with him, he was to pay the wages and expenses out of his share of the proceeds ; and that when the plaintiff took the command, he took the vessel upon the same terms while he acted as master.
    The case made and settled by the referee, states that the cause was submitted, “ after having been summed up, and the counsel for the defendants who had answered in this action admitting that the defendants were liable to the plaintiff for the payment of Francis’ bill,” ($4.95.) But the case also states, that after the submission, the counsel 11 handed in to the, referee written points which discussed the liability of the defendants for the bill of Francis those points denied such liability. The opinion of the court also states some of the facts proved on the trial.
    The referee, upon all the evidence in regard to the claim of the plaintiff for services, and in relation to his claims for moneys paid for the use of the plaintiffs, found and decided as follows, viz.":
    “ That the defendants were owners of the schooner William. B. Marsh, during the periods alleged in the complaint.
    “ That the defendant Edward Decker, acted as master of said schooner during the year 1855, and up to March 29, 1856.
    “ That Daniel Patten, James Ward, and George and John, were seamen on board said schooner at the date the master ' left her, to wit, March 29, 1856.
    “ That one of the owners, other than the captain, had, at times, paid wages to seamen serving on board said schooner, and charged such payment to, and settled it with the captain.
    “ That plaintiff, on the 30th March, 1856, after an interview with these men, met Jones, one of the defendants, and told him the men demanded their wages, and would libel the vessel for them, and asked him what should be done ; that the defendant Jones, told plaintiff to pay them, and thereupon, plaintiff' paid to Patten, $18.56 ; to Ward, $14.52; to John, $5.46—in all to $38.54. That plaintiff advanced the sum of $4.95 for necessary articles for use on said schooner, at the instance of defendants. That none of these sums, have been repaid him; that interest on the same, from date of payment to date of this my report, is $10.63, which, added to the sums aforesaid, makes $54.12.

      “ Wherefore, I find, as conclusion of law, that the defendants are indebted to the plaintiff in the sum of fifty-four dollars and twelve cents, and that the plaintiff is entitled to judgment against the defendants, at the date of this my report, for fifty-four dollars and twelve cents, with costs of this action,
    “And, as to the claim, by plaintiff, for services, I report that he has not sustained the same against any of .the defendants who have answered in the case.”
    The counsel for the said defendants thereupon, in due time and form, excepted to the findings and conclusions of the said referee, as contained in said report, in all the particulars necessary to raise the questions discussed in the opinion of the court.

      A. H. Wallis, for the Defendants, (Appellants.)
    I. The defendants are adjudged liable to pay the amount paid by the plaintiff to the men, because he went to defendant Wright’s scow and saw defendant Jones, and told him that the men were going to leave the vessel, and the next thing they would libel her, and asked him what was best to be done about it. He told the plaintiff to pay them, and that is why he paid them.
    In this the referee erred, because:
    1st. The defendants, although owners of the vessel, were not partners; their interests were distinct and several, and the act of Jones could not bind the other defendants. It was not a direction or an act of a part owner which was necessary to enable the vessel to earn freight, or which conduced to the benefit of all the owners, but was a direction to pay a debt due these men by another person, and for which the defendants were not liable in any way. (8 Kent’s Com. 152,153, 154 ; Abbott on Shipping, 129, notes and cases cited; Thompson v. Snow, 4 Green. R. 264.)
    2d. Defendant Jones did not tell the plaintiff to pay the men on account of the vessel or its' owners. The plaintiff came to him for advice, and what he said was advisory only, supposing that Decker would return, or that the plaintiff might, as mate, have means belonging to the vessel in his hands or under his control.
    3d. The report of the referee cannot be supported on the ground that these men had a lien upon the vessel and might have libelled her, because, 1st, no proceedings had been taken by them to enforce their lien, and none had been threatened, and the plaintiff was not authorized to relieve the vessel until there was danger that she would be pursued; 2d, by the payment of these men, all the plaintiff could claim would be to be subrogated to their rights, and they had no personal claim against the defendants— their lien could only be enforced by a proceeding in rem; and 3d, it was altogether unlikely that these men would have libelled the vessel, as the expense of the proceeding would have exceeded their claims, as they could not recover costs when their claim was less than $100. (Laws of U. S. of 1847, chap. 55.)
    4th. There is no evidence whatever as to what was due to these men. Nothing was said by the plaintiff or the defendant Jones, as to what was due to, or was to be paid to these men; and the plaintiff could only recover what he proves was owing to them for their wages on the vessel, and as he has not proved that there was anything due to them, the referee erred in giving judgment for what he paid. The plaintiff had no right- to pay what he pleased, and then recover it of the defendants.
    II. The referee erred in allowing the plaintiff the hill of Francis, of $4.95, because:
    1st. The bill was for stores that, by the terms of the charter, the defendants were not liable for, and the payment by the plaintiff was entirely voluntary.
    2d. The plaintiff himself chartered this vessel, and, by the terms of his charter, was to pay all such bills as this of Francis, and this bill was incurred while he had the vessel, and he alone was liable for it.
    3d. There was a final settlement and adjustment of all accounts between the parties which concludes the plaintiff.
    III. The proof makes out beyond dispute, and it is not controverted,- that Decker took the vessel upon the following terms: He was to man and supply her, and have the absolute control of her and her movements, and was entitled to two:thirds of her freight money, and the defendants to the other third, as a compensation for the use of the vessel.
    Decker was thereby owner, pro hac vice, and the defendants were not liable for any of his engagements, or to the seamen for their wages. (Abbott on Shipping, 133, note 1, ed. 1854; Thompson v. Snow, 4 Greenl. Rep. 264; Winsor v. Cutts, 7 Greenl. Rep. 261; Jones v. Blum, 2 Rich. Rep. 475; Well v. Pierce, Curtis C. C. Rep. 104; Aspinwall v. Bartlett, 8 Mass. Rep. 483; Hallett v. Colum

      bian Ins. Co., 8 John. Rep. 209; 1 Parsons on Maritime Law, 111, note 2, and page 235 and 236.)
    The case of Slcolefield v. Potter, (Davies’ Rep. 392,) is overruled by Well v. Pierce, (Curtis C. C. Rep. 104.)
    All the above cases hold that a participation in the freight makes no difference.
    The judgment should be reversed.

      Jonathan Edgar, for the Plaintiff, (Respondent.)
    I. The referee was right in finding that the amount paid by the plaintiff to the seamen, Patten, Ward, and John, was justly due and owing to him by the defendants, with interest from the time of payment.
    1st. As a general principle, the owners of a vessel are personally liable for the wages of seamen, and there is nothing in this case to prevent the application to it of this principle. The agreement between the owners and master could not affect the rights of the seamen, unless they were made aware of it, and there is no evidence that they knew anything of it. (Skolefield v. Potter, Davies’ Rep. 392, Dis. Ct. Maine; Arthur v. The Schooner Cassius, 2d Story, C. C. R. [U. S.] 92, 94.)
    There are some adverse decisions in the State courts of Massachusetts and Maine, but none in this State, and certainly the United States courts’ decisions should govern.
    2d. Although owners of a vessel are not necessarily partners, yet they may be such for a particular voyage, or series of voyages, and the agreement (so far as any is proved) showed the owners in this case to have been partners for all the voyages.
    3d. The fact that one of the owners usually collected the freight, and sometimes paid the men, was a recognition of their liability to the seamen for their wages, and entitled the seamen to look to them for payment.
    4th. The seamen had a right to libel the vessel for their wages, (no matter who employed them,) and the fact of their being about to do so, rendered it not only proper but necessary for the interest of all the owners that they should be paid.
    5th. The owner who thus paid the wages (through the plaintiff) had an undoubted right to call upon the other owners to contribute towards the same. (Mumford v. Nicoll, 20 John. 631 to 636 ; Schemerhorn v. Loines, 7 John. 311; 3 Kent’s Com. (margin) 25, 40, 154, 155, 196; Story on Agency, § 40; Story on Partnership, §§ 408, 440 to 446, inclusive, and 455.)
    6th. If Jones, or Wright, or any other part owner, had authority to pay the seamen, and bind the other owners, he undoubtedly could direct the plaintiff (who then had charge of the vessel) to pay the men, and the plaintiff, paying them under such direction, could hold all the owners responsible.
    II. The construction of a contract most favorable to the seaman is always adopted, and every presumption is made in his favor.
    III. The referee was right in finding that the amount paid by the plaintiff to Francis for the bill A, was justly due and owing to him (the plaintiff) from the defendants, with interest.
    1st. According to the alleged agreement for the running of the vessel, this was an item properly chargable to the owners. It was all for repairs, equipments, &e.
    2d. The plaintiff, at the time this bill was contracted, was master of the vessel, and had authority, and was bound, under his agreement, to pay this bill for the owners ; besides, he was expressly directed by one of the owners, to contract it. the trial, should bind them.
    3d. The admission of the counsel for the defendants, on The judgment should be affirmed with costs. .
   By the Court. Woodruff, J.

—This action was brought by the plaintiff to recover from the defendants, as owners of the vessel called “ The William Marsh,” for services, and also for moneys paid, laid out and expended for the use of the defendants, and at their request.

He has recovered judgment for the moneys paid out by him and interest thereon, and for those moneys only.

The referee before whom the action was tried, finds as facts proved before him, that the defendants were owners of the vessel during the year 1855, and afterwards during the periods mentioned in the complaint herein; and that down to March 29, 1856, one of ^ them (Decker) was also master of the vessel. That three seamen, (Patten, Ward, and John,) were seamen on board at the time when Decker ceased to be master. That one of the defendants, other than Decker, sometimes paid the wages of seamen serving on board, and charged such payment to and settled it with Decker as captain (or master).

That one of the defendants directed the plaintiff to pay to Patten, Ward, and John, their wages, and he thereupon paid them in all the sum of $38.54.

He further finds that the plaintiff, at the instance of the defendants, paid and advanced for articles procured for use in the said vessel, the sum of $4.95.

For these sums with interest, he decided that judgment should be awarded for the plaintiff.

As to the sum of $4.95, paid by the plaintiff for articles procured for use on the schooner, the correctness of the referee’s decision ought not to be considered open to inquiry. The case shows that the case was submitted after the summing up of counsel, “ the defendant’s counsel admitting that the defendants were liable to the plaintiff for the payment of the bill, Exhibit A’’ which was the bill for the said articles so procured, amounting to $4.95, and which the plaintiff had paid.

This admission the plaintiff’s counsel bad a right to accept and act upon. We cannot say in what precise stage of the cause the admission was made, but it is stated that the case was submitted after such admission. We cannot know that the plaintiff would not have sought to give, or that he would not have given further proof in relation to this item if the admission had not been made. It is enough that the case was submitted on that admission. • The defendants could not, by subsequently handing in written points in denial of such right of recovery, retract their admission made at or before the actual submission of the case to the referee.

Besides, irrespective of such admission, we think the referee was right in respect to the liability of the defendants for the amount of the bill. One of the defendants had approved the bill and certified it to be correct. Another of the defendants testified that under the arrangement with the plaintiff as to running the vessel as master, (the terms of which he said were the same as those upon which Decker sailed her,) the owners were to pay for the ordinary equipments and repairs of the vessel. The articles in question, seem to us plainly included in that description, and not to be stores for the consumption of the crew. It was testified that the articles were necessary for the vessel, and that one of the defendants ordered the plaintiff to get what things he wanted for the vessel, and that he procured them and paid for them.

This proof seems to us, to bring the claim for these articles within the ground that part owners of a vessel are, as the general rule, liable for supplies and repairs furnished the vessel, and especially so when there is no agreement that the master shall himself furnish them.

In respect to the several sums due to the seamen paid by the plaintiff, we think the referee properly allowed them, and that the plaintiff was entitled to recover them from the defendants.

They were paid. by the express direction of one of the defendants. They were certified to be correct by another of the defendants, who, from his connection with the vessel during the period of the service claimed for, knew personally whether they were correct, and the seamen had served on board with the last named defendant. This was, we think, sufficient frima facie to warrant the plaintiff who was, in making such payment, acting as agent for the owners in allowing and paying the sums which he did pay.

Some principles applicable to this part of the plaintiff’s claim, are also pertinent to his claim for the money paid for articles procured for the use of the' vessel first above referred to and discussed ; and it is to be observed particularly in reference to the wages of the seamen, that at the time they were earned, one of the owners was himself the master, and the ship was employed for the benefit of all the owners, they being sharers in the profits of her employment. Although it is testified that the owner who sailed the vessel as master, was to pay the seamen by the terms of a private arrangement between the owners, yet even this arrangement was not ostensibly observed, since one of the other owners sometimes made the actual payment to the hands, making such payment the subject of charge to the owner who sailed as master, in the arrangement of the private accounts of the owners among themselves ; so that to all appearances, and so far as the seamen and other third persons were concerned, the vessel was in the hands of the owners, and run by them, and for their account, one of them sailing as master. The seamen did not know; no third persons dealing with the vessel knew, that in the settlement of the accounts between the owners, the adjustment was made by allowing to the master a share of the net earnings in lieu of wages. Not only so, but as all the owners were interested in the earnings and entitled to a share thereof, and not entitled to a fixed sum as charter money, the case would be distinguishable, (if such a distinction was material,) from the case of a vessel chartered to a third person and placed under his sole control, in which case the charterer is, for many purposes, deemed owner, and the actual owners not liable for his acts. Here there was a community of profits divisible among the owners according to a private arrangement between them.

So also the case -is not one in which some of the owners employ a vessel against the will and consent of other owners, subject only to a liability to account, in which case the non-consenting owners may not, against their will, be charged by the others with liability.'

The general rule would, therefore, seem applicable to the present case, viz; that all the owners are prima facie liable for repairs, supplies, and for wages of the seamen while the vessel is .employed for their benefit, (Westerdell v. Dale, 7 T. R. 306 ; James v. Bixby, 11 Mass. R. 34; Thompson v. Finden, 4 Carr & P. 158.) In respept to putfit they are said to be partners, Wright v. Hunter, (1 East. R. 20,) and to be all liable. (Scottin v. Stanley, 1 Dallas R. 129 ; Schemerhorn v. Loines, 7 J. R. 311; Muldon v. Whitlock, 1 Cowen R. 290 ; Baldney v. Ritchie, 1 Stark. R. 338; Chapman v. Durant, 10 Mass. 47.) And Mr. Justice Story says; Where one or more of the part owners are, by common consent, employed in the general concerns of the ship, all the part owners ar.e liable in solido, for the debts properly incurred on the joint account, (Story on Partnership, § 440,) and that it will make no difference in respect to the liability of the owner, (even though the master is not himself a part .owner;) that the master is, by private agreement, to have the entire ship to his own use for a specific period, and make all the repairs at his own expense, for such a private agreement cannot vary the rights of third .persons, This is a much stronger case for the defendants than the one now before us, and yet the owners are deemed liable to third persons. (Story on Agency, § 298 ; Rich v. Coe, Cowp. R. 636 ; Collyer on Part. §§ 1,225, 1,228.) Within these rules the owners are liable for all contracts made by the master, within the ordinary scope of his employment, and none are more so than the engagement of seamen to serve on board the vessel. And this is especially true when the master is himself one of the owners running her for the common benefit; and that in general, owners are-liable for the wages of the seamen is obvious. (Story on Con. § 113 to 122; Worth v. Mumford, et. al. and cases cited, 1 Hilton, 1.)

There was then a prima facie liability of the owners to the seamen; an express direction by pne of the owners to the plaintiff while acting as the agent of the owners, to pay them; a certificate by another of the owners to the amount due to the seamen; a right in the seamen to institute legal proceedings against the ship to compel payment; a motive therefore forming a consideration to induce the owner directing such payment to do so to save the owners from expenses and loss if the wages were not paid; and an actual payment by the plaintiff of the sum reported by the referee, for the use and benefit of the defendants.

This cannot, we think, be regarded as a voluntary payment for which the parties benefitted are not liable; and acting in good faith, and in the exercise of due diligence, we think "the plaintiff was prima facie justified in paying the amount which one of the defendants stated to him was due and which the seamen claimed. This, we think, sufficient at least, to put the defendants to show either that the plaintiff acted in bad faith, or that the amounts paid by him were not due to the seamen.

Our conclusion is, therefore, that the judgment should be affirmed with costs.

Ordered accordingly.


author: By the Court. Woodruff, J.—This

text:
    Daniel Owen and Jeremiah G. Lugar, Plaintiffs and Respondents v. The Hudson River Railroad Company, Defendants and Appellants.
    1. Where the negligence of two parties using the public highway concurs, and the negligence of each contributes, to produce collision and injury, neither can recover damages from the other for the injury so received.
    2. When the negligence of one of the parties consisted in carelessly driving a stage across the track of a railroad, (laid in the streets of a city,) in front of a car approaching thereon, the fact that such car was not furnished with proper brakes, and could not therefore be promptly stopped, only creates a case of concurring negligence of both parties, producing collision and injury, and the railroad company are not liable.
    3. If, therefore, the plaintiffs’ agent and stage driver be negligent on his part, in carelessly crossing a railroad track, and receives injury by a collision thereon with a car, it is erroneous to instruct the jury, that if, when the driver of the car saw the driver of the stage attempting to cross the tracjr, the car driver, hy ordinary care, could have slackened the speed of his car if the brakes had been in good order, so as to have avoided a collision, the defendants are liable.
    4. A rail company is bound to keep its cars in good and safe working order, and is also bound to cause them to be driven in a careful manner; and if, in either particular, they are negligent, they are liable to any one who, without concurring or contributing negligence on his part, is injured thereby, but to no others; and it makes no difference in which of those particulars the negligence of the railroad company consists, or even that they are negligent in both respects.
    (Before Hobtman and Woodeuit, J. J.)
    Heard April 11,
    decided July 7, 1860

      In this action, a new trial was ordered by the general term, on the 30th of January, 1858, for reasons stated in the opinion of the court. (Reported 2 Bosw. 374.) It was brought to trial accordingly, on the 9th of February, 1859, before Boswobth, Chief Justice, and a jury.
    The action was brought to recover damages sustained by the plaintiffs, by two collisions between their stages, or omnibusses, and a car of the defendants. The facts in controversy and the evidence, so far as is" material to make the points discussed and the decision of the court intelligible, are stated in the report of the case on the former trial, as contained in 2d Bosw. And, when the plaintiffs rested,, the defendants moved for a non-suit, as on the former trial, on the ground that the proofs showed that the collision and consequent injury to the plaintiffs’ stages, were caused by the negligence of the plaintiffs’ driver, in attempting suddenly to cross the track of the railroad in the Tenth avenue, in New York city ; and in one instance, in turning his stage on to the track just as the car of the defendants was approaching, and at a place where the approach of the car could be seen for a long distance, and would have been seen if the driver had looked in that direction, as he ought to have done; and, also, that no proof of negligence on the part of the driver of the car was shown. The motion was denied, and the defendants excepted. The proof not only tended to show such negligence in the drivers of the stages, but the plaintiffs claimed that negligence on the part of the driver of the car was shown—and other evidence tended to show that after he saw the danger of collision, he did all in his power to stop the car—but there was also evidence that the brakes on the defendants’ car were not in good working order, and the car could not, for that reason, be stopped so soon as if they were in proper repair.
    The counsel for the defendants then asked the court to charge the jury, that if the plaintiffs’ drivers were guilty of negligence, then the defendants would not be liable, provided the drivers of the cars used reasonable care and skill in the use of the means which they had to avoid the accident.
    [The court refused to charge in the precise terms of the said request, but in respect thereto charged the jury as is hereinafter stated, to which refusal the -defendants’ counsel then duly excepted.]
    The defendants’ counsel then asked the court to charge ' the jury, that if the plaintiffs’ negligence in any degree contributed to the accident, the plaintiffs cannot recover, although they believe the brakes were out of order.
    [The court refused to charge in the terms of the said request, but in respect thereto charged the jury as is hereinafter stated, to which refusal the defendants’ counsel then and there excepted.]
    The chief justice charged the jury, that the plaintiffs are not entitled to recover merely because there was negligence on the part of the defendants’ drivers, or other agents, if it be also true that the drivers of the stages were negligent, and that their negligence contributed to produce the collision and injury; and this he illustrated at some length, defining what, under the circumstances proved, was negligence on the part of the drivers of the stages, and on the part of the drivers of the cars, respectively, contributing to produce the collision and injury. And he added:
    “ If both drivers were negligent, and the negligence of both concurred to produce the collision and injury, it is immaterial which of the two was most to blame. You cannot, without violating the rules of law, give a verdict for the plaintiffs on the ground that the driver of the car was negligent, even if you should find such to be the fact, provided the evidence satisfies you that the driver of the omnibus was also negligent at the time, and that his negligence contributed to produce the collision and injury. In order to recover in an action of this kind, there must' not only be negligence, on the part of the defendants, but there must have been none on the part of the plaintiffs which contributed to produce the injury. And you cannot find for the plaintiffs, unless the evidence convinces you that there was no negligence on the part of the plaintiffs’ drivers which contributed to produce the injury. The negligence of the drivers of the cars, if there was any, for all the purposes of this action, is to be treated as the negligence of the defendants. The negligence of the drivers of the omnibusses, if there was any, is also, for all the purposes of this action, to be treated as the negligence of the plaintiff's, and they are to be affected by it precisely as they would be if they had been themselves driving, and had conducted precisely as their drivers did. You will therefore determine whether either or both collisions was caused by the negligence of the defendants’ drivers, without any negligence of the plaintiffs’ drivers concurring to produce such collision. If either or both of them was, you will find a verdict for the plaintiffs. If, on the other hand, you find that the negligence of the plaintiffs’ drivers contributed to produce both collisions, then the law makes it your duty to find for the defendants.”
    ' But, in relation to the subject as affected" by the condition of the brakes of the defendants’ cars, he charged :
    “If, when the driver of the down going car saw him (the stage driver) attempting. to cross to the west, the driver of the car - going down, by ordinary care, could have so slackened the speed of his car, (if his brakes had been in

      good order,} so as to have avoided a collision, the company would be liable.”
    The counsel for the defendants duly excepted to the words “if his brakes had been in good order.”
    And the chief justice continued:
    “ But under such circumstances, the company would not be liable merely because its drivers failed to use extraordinary care to avoid a collision. If, by ordinary care, the driver of the car, if it had a brake that was suitable and in a good condition, could not have prevented the collision, the company is not liable. If the negligence of the driver of the car going down consisted in a large degree in not seeing the omnibus until it was too late to prevent a collision, even if the brake had been a good one and in good order, then such negligence was of the same character as that of the driver of the omnibus, in not seeing the dar approaching until it was too late for him to pass out of its reach.”
    The jury rendered a verdict for the plaintiffs for $951.61 damages,
    The defendants moved for a new trial at special term, and the motion being denied, they appealed to the general term.

      Wm. Fullerton, for the Defendants, (Appellants.)
    I. The court erred in refusing the motion to dismiss the complaint on the ground that the plaintiffs’ negligence contributed to both accidents.
    As to the first accident, the driver’s negligence consisted in “suddenly” driving on the track ahead of the car, with a wet weather cap on. his head, tied under his chin, without looking to see whether a car was approaching, when he knew it was the regular time for the car to pass.
    As to the second accident, the negligence of the driver consisted in attempting to drive across the two tracks of the railroad,.from one side of the avenue to the other, with two cars gding in. opposite directions approaching, when it was impossible to avoid them. (Steves v. Oswego and Sy. R. R. Co., 18 N. Y. Rep. 422.)
    II. The judge erred in charging the jury that, “ If, when the driver of the down car saw the driver of the stage attempting to cross to the west, the driver of the car going down, by ordinary care, could have so slackened the speed of the car, (if his brakes had been in order,) as to have avoided a collision, the company would be liable.”
    The words, if his brakes had been in order,” were excepted to by defendant..
    This was equivalent to charging the jury, that notwith-' standing the driver of the stage may have been guilty of negligence, yet, if the accident could have been prevented if the brakes had been in good order, the defendant is responsible. In other words, the jury were told that if the concurring negligence of both drivers caused the accident, yet the defendant is responsible, if the jury think that the accident would not have occurred had the defendants not been guilty of negligence.
    This cause was once sent back for a new trial for a similar error. (Owen v. Hud. R. R. R. Co., 2 Bosw. 380 ; see, also, Button v. Hudson R. R. R. Co., 18 N. Y. Rep. 248 ; Steves v. Oswego and Sy. R. R. Co., supra.)

    The order appealed from should be reversed, and a new trial ordered.

      J. W. Gerard, for the Plaintiffs, (Respondents.)
    I. The question of negligence on the part of the plaintiffs or defendants, or both, is a question of fact for the jury, which, being determined by them, will not be disturbed ordinarily by an appellate court.

      a. If a defendant moves for a nonsuit at the close of plaintiff’s evidence, even if he is entitled to it, if he gives evidence afterwards to disprove negligence, he waives an exception taken to a denial of the court to grant his motion being made on the ground that no negligence was found.

      (Colegrove v. N. Y. and H. R. R. Co., et al., 6 Duer, 383.)

      II. The court was correct in refusing to charge the jury in the precise terras of the first request of the defendants’ counsel for the following reasons, viz:

      a. The request is that, presuming the plaintiffs to be guilty of negligence, and that the defendants “used reasonable care and skill in the use of the means which they had to avoid the accidents,” then the plaintiffs cannot recover. The defendants were not only required to use such means as they had, but they must have at least the usual and ordinary means of preventing collisions, or the failure to have such means will be negligence of itself. (Hegeman v. Western Railroad Co., 3 Kernan, 9; Smith v. N. Y. and Harlem Railroad Co., 6 Duer, 225; Smith v. New Haven Railroad, Co. 19 N. Y. Rep. 127.)

      b. The evidence shows that the brakes of the cars were useless in both cases.
    III. The court substantially charged the jury as requested by the defendants’ counsel in his second request.
    IY. The same remark applies to the third and fourth request of defendants’ counsel; the court was correct in refusing so to charge. The question of negligence is one for the jury to determine, and it would be error to charge the jury that such negligence was apparent. (Poler v. N. Y. Central Railroad Co., 16 N. Y. Rep. 476; Smiths. N. Y. and Harlem Railroad Co., 6 Duer, 225.)
    Y. Negligence on the part of the plaintiffs is not to be presumed; and, therefore, direct evidence to disprove it is not required from the plaintiffs in the first instance; and where there is conflicting evidence and the preponderance is with the plaintiffs, they are entitled to recover. (Button v. Hudson River Railroad Co., 18 N. Y. Rep. 248.)

      a. There is no evidence of any negligent act on the part of the plaintiffs in the case; none is contained in the evidence of Charlotte Russell, and in the evidence of Charles Starr. Even if there is evidence of neglect here, (and the jury have decided the contrary,) there is certainly a preponderance of testimony on the plaintiffs’ part, proving their guiltlessness of negligence. VI. Where a presumption of negligence has been established against a defendant, in an action for damages resulting from an accident, it can only be rebutted by proving that the accident resulted from circumstances against which human prudence and foresight could not guard. (Bowen v. N. Y. Central Railroad Co., 18 N. Y. Rep. 408.)

      a. A presumption of negligence was surely established against defendants, and there was no proof, of the kind required by the above decision, offered.
    VII. It is insisted that the defendants were guilty of gross negligence, in not having the brakes to the car in an available condition. (Hegeman v. Western Railroad Co., 3 Kernan, 9; Smith v. N. Y. and Harlem Railroad Co., 6 Duer, 225; Smith v. New Haven Railroad Co., 19 Smith, 127.)

      a. A grossly negligent injury is never tolerated, be the negligence on the part of the plaintiff what it may. (Hartfield v. Roper, 21 Wend. 615.)

      b. Gross negligence is the want of slight cáre and diligence. (Bouvier’s Law Die.) JYegligence.

    VIII. No negligence on the part of the plaintiffs has been shown, and the judgment of the court below should be affirmed.

   By the Court. Woodruff, J.—This

cáse came before the general term in January, 1858, on appeal from a judgment in favor of the plaintiffs. It appeared from the case a.s there presented, that the judge presiding at the trial had charged the jury that “ if the jury believed that the brakes of the defendants’ car were not in good or sufficient working order, so that they were inefficient for the purpose of checking the progress of the car; and if they were satisfied that the driver of the car had time enough, after he discovered the dangerous position of the stage, to have avoided the collision by the application of the brakes, if they had been in good order, then the plaintiffs were entitled to recover, notwithstanding the plaintiffs’ driver (of the stage) was guilty of imprudence or carelessness in getting into such a position.”

This instruction was held by the general term, erroneous, and the judgment was reversed, and a new trial ordered for this error. (See the case reported 2 Bosw. 374, and see note on page 380.)

On such second trial, the chief justice charged, in general terms, and with great distinctness, that if both drivers were negligent and the negligence of both contributed to • produce the collision and injury, it is immaterial which was most to blame; that if the negligence of both drivers concurred to produce the injury, the plaintiffs cannot recover. But he also charged, in view of the claim of the plaintiffs, that the brakes attached to the defendants’ car, were not in proper working order, as follows:

“ If, when the driver of the down going car saw him (the driver of the plaintiffs’ stage) attempting to cross (the track) to the west, the driver of the car going down, by ordinary care, could have slackened the speed of his car, if the brakes had been in good order, so as to have avoided a collision, the company (the defendants) would be liable.”

We are not able to reconcile this instruction with the former decision above stated. This instruction imports, by obvious implication, that, although the driver was active and diligent to the utmost of his power in the use of all the means at his command, and was therefore entirely free from the imputation of negligence; still, if his diligence was ineffectual by reason of imperfection in the brakes, the defendants are liable notwithstanding the plaintiffs’ servant may have been guilty of negligence in attempting to cross the track in front of the defendants’ car. In other words, if the defendants were negligent in not keeping the brakes in good order, they are liable, although the negligence of the plaintiffs concurred therewith in producing the injury.

It is unquestionable that the defendants were bound to keep the brakes of their cars in good working order, and they were bound to cause them to be driven through the streets in a careful and proper manner; and if, in either particular, the defendants neglected to perform their duty, they are liable to whomsoever is without any concurring fault or negligence injured thereby, and only to such as are free from such concurring fault or negligence.

This proposition was stated to the jury in so far as relates to the defendants’ duty to cause their cars to be properly ■ driven, and also that if both drivers were in fault and the negligence of both concurred to produce the collision and injury, the plaintiffs could not recover.

The same rule is applicable to the duty of the defendants, to keep their brakes in order. If, in this respect, the defendants were negligent and the driver of the- stage was also negligent, and such negligence of both concurred to produce the injury, the plaintiffs were not entitled to recover.

Or to present the question in another aspect: If it was negligence to attempt to drive through the streets a car which was not furnished with proper brakes, in good order, still, if the negligence of the plaintiffs concurred with that of the defendants in causing the injury, the defendants are not liable.

If the driver of the car, after he saw the dangerous position in which the plaintiff’s driver had negligently placed himself and'his stage, could, by ordinary care in the use of the means which were then at his command, have arrested the progress of the car and so have prevented the injury, it was his duty to use that care; but if the plaintiffs’ servant was, by his own negligence, placed in a situation of danger, proof of mere negligence on the part of the defendants in not having kept their brakes in good order, only proved a case of concurring negligence of both parties, for the consequences of which, neither was liable to the other.

This, we understand, to be the decision of the general term when this case was before the court on the former appeal. We forbear, therefore, from discussing the questions at length or reviewing the authorities.

The order appealed from must be reversed, and a new trial must be ordered, costs to abide the event.

Ordered accordingly.


author: By the Court. Woodruff, J. Robertson, J.

text:
    George Bliss, et al., Plaintiffs v. William M. Bliss, et al., Defendants.
    1. Where goods are sold by a broker without disclosing his principal, the purchaser, when sued by the principal for the price, cannot set-off a debt due to him from the broker.
    2. Where a sale is made by a factor, the purchaser, as the general rule, may set-off a debt due to him from the factor..
    3. But even where the sale is made by a factor, if the purchaser know or has reason to believe, that the factor is not the owner of the goods, but is acting in the sale in question as broker or agent of the owner, the purchaser cannot" set-off a debt owing to him by the factor.
    (Before Woodruee, Monoriee and Robertson, J. J.)
    Heard October 5,
    decided November 10, 1860.
    Exceptions ordered at the trial to be heard, in the first instance, at general term.
    The action is brought to recover the price of goods alleged to have been sold, at the city of New «York, by the plaintiffs to the defendants, on the 5th day of February, 1857, on a credit of eight months, at the price and of the value of $237.11; for which sum, with interest from the 5th of October, 1858, the plaintiffs demand judgment.
    The defendants, by their answer, deny.that they purchased any goods from the plaintiffs, or owe them any sum whatever; and aver, that on the 5th of February, 1857, one William C. Noyes, a merchant doing business in the city of New York, sold and delivered to them goods on a credit of eight months, for the sum of $237.11; and rendered a bill to them therefor, in his own name, headed “ Messrs. Bliss, Douglass, Wheelock & Co.:—Bought of W. C. Noyes, foreign dry goods commission merchant.” And they aver, that on the faith of the said sale, they, on' the same day, sold and delivered to him goods, on the like credit, for the sum of $269.49. That the said Noyes did not, at the time of the sale to the defendants disclose, nor were the defendants informed, nor did they know, that he was acting in behalf of the plaintiffs, and aver that he sold them as his own goods; and they say that they had, from time to time, before dealt with the said Noyes, and had sold him goods, “ but never, nor would they have done so, on his own responsibility merelythat they then believed' and now believe him irresponsible. And the defendants, by way of counter-claim, pray to set-off the price of the goods sold by them to Noyes, against the demand of the plaintiffs, and “ claim that the plaintiffs are subject to all the equities which exist in favor of the defendants, against the said Noyes.”
    The plaintiffs, in their reply, denied the allegations of the defendants, set up by way of counter-claim.
    The action was tried on the 4th day of June, 1860, before Bosworth, Chief Justice, and a jury.
    Upon the trial, only two witnesses were examined, and their testimony was as follows, viz. :

      William C. Noyes, sworn for the plaintiffs, testified : “ know the parties. I sold the defendants a bill of goods, February 5, 1851. The amount was $231.11. The sale was made for the account of George Bliss & Co. I delivered the goods. I was employed by them to sell the goods. The terms of the sale were eight months’ credit. I delivered the goods.”
    Being cross-examined, he said : “I was at that time a commission merchant in the city of New York, and did bush ness as such. I had been in business three or four years, and during that time I had been a commission merchant. I seldom did business on my own account, otherwise than as a commission merchant. I think the sale was made at the store of the defendants. I sold the goods to the defendants in my own name. The plaintiffs were not referred to, nor any other person. I was the only person known in the transaction.” Being shown a bill of sale, which is as follows :
    “New York, February 5, 1857.

    “All claims for allowance must be made within three days after receipt of goods.
    “ Messrs. Bliss, Douglas, Wheelock & Co.,—Bought of W. C. Noyes, foreign dry goods commission merchant, No. 149 Broadway, cor. Liberty street—half case 30 ps. plain nankeens ; mts. 156340 1693| 14—$237.11.
    “ Note at eight months, to your own order.”
    He says, “ that is the bill of the goods given by me at the time of the sale.”
    (The bill was thereupon read by the counsel of the defendants to the jury.)
    “ On that sale, the goods were duly delivered by me. On the same day, the 5th of February, 1857,1 received a bill of goods from the defendants, to the amount of $269.49. They were goods that I sold for them at' that time. The sale was at eight months. I received them as a commission merchant. I do not know whether or not they were charged to me. I was to give them the note of the party to whom they were sold. I did not give them the note of any party. The proceeds of the goods were received and retained by me. I have never paid defendants for these goods. I was to account to defendants for these goods, but have not.”

      Re-direct: Q. Were these goods, for which this action is brought, consigned to you ?
    A. Yes.
    Q. Were the goods delivered to you ?
    A. No, a sample; two pieces were sent to me. I was acting as a commission merchant, and, perhaps, a broker at the same time. I had known the defendants a number of years, and had sold goods for them. They knew my business. I had sold goods for them a few days before, and some goods a few weeks; during January, 1857, two or three bills, and one subsequent; one bill a day or two before this.
    Q. Did you buy these goods of the defendants, amounting to $269.49, and become indebted to them therefor?
    Question objected to by the counsel for the defendants.
    Q. Did you buy any goods of them about that time ?
    A. To the best of my recollection, I told them I could sell these goods to a certain house. They authorized me to do so. I sold them to that house. After making the sale to the defendants, I reported it to the plaintiffs, and obtained from them the goods.

      Cross-examined: I don’t remember positively whether the goods of the defendants, in the bill of February 5th, were delivered at my store or not, but I think they were. I think I told them previously to whom I had sold them. It was in the way of my regular business. I think Phelps, Vail & Co., gave a note for them to .me. They were the persons to whom the goods were sold. I sold them the goods in-my own' name, and received the proceeds. They knew no other person in the transaction than myself. I sold them, in that respect, in a similar manner to that in which I sold the goods of the plaintiffs.
    By a. juror: When you sell goods as a broker, is it not usual to give the name, and afterwards turn over the note ?
    A. It is.
    By another juror : I gave an order to the plaintiffs for the note, for goods sold to the defendants.

      Re-direct resumed : This is the order.
    Being further cross-examined: It was not given at the time of the transaction. It was given March 4th, which was after I had failed.

      Re-direct: Within what time is it usual for you to hand over the note ?
    Objected to.
    A. About a month after the sale.
    Plaintiffs then rested. ",
    The counsel for the defendants then opened the case to the jury, and claimed that the defendants had a right to set-off against the plaintiffs’ demand, the counter-demand of the- defendants against the said William C. Noyes, for the bill of $269.49. He then called

      Solomon Caldwell, who, being sworn for the defendants, said: “ I was the clerk of the defendants in 1857. I purchased n- bill of goods for the defendants, of Mr. William C. Noyes, to the amount of $237.11. They were purchased from Mr. Noyes, the sale being by him in his own name. I knew of no other party. No other party wás mentioned as having any ownership in the goods. I have not a very distinct recollection as to the sale of the bill by the defendants, which I think was not in my department. I had instructions that our house did not wish to sell Noyes solely on his own responsibility—not without taking security. I bought goods from him as from any other party.”
    Being cross-examined: “ I know Mr. Noyes as a commission merchant and as a broker. I was a buyer and seller of goods for the defendants. I am not aware that any* thing was said to Noyes as to paying in goods for the purchase made of him. Nothing was said to Mr. Noyes, that I remember, at the time of the purchase of goods from him, about a sale of goods to him.”
    The counsel for the defendants then insisted, that on the whole evidence, the plaintiffs were not entitled to recover against the defendants.
    The chief justice thereupon directed a verdict for the plaintiffs, for the amount of the sale, of $237.11, and interest, as claimed by the plaintiffs. To which ruling and direction, the counsel for the defendants excepted.
    The jury, under such direction, found a verdict for the plaintiffs for $281.88.
    And the judge presiding at the trial directed that the questions of law in the cause should be heard in the first instance at the general term of the court, and judgment in the meantime to be suspended.

      Charles F. Sanford, for the Plaintiffs.

      William Bliss, for the Defendants.
   By the Court. Woodruff, J.

—It is insisted, on behalf of the plaintiffs, that the claim of the defendants to set-off the amount or value of the goods which the witness Noyes sold for them to Phelps, Vail & Co., must be disallowed upon two grounds: First, That the claim is not the subject of set-off, and therefore could not be allowed even if Noyes were now plaintiff suing for the price of goods belonging to himself, sold to the defendants; and Second, That no such set-off can be allowed against the plaintiffs, his principals, the actual owners of the goods sold by Noyes to the defendants.

1. The first proposition cannot, we think, be sustained. It is true, that having been authorized by the defendants to sell their goods, and having made such sale, it was the plain duty of Noyes to account therefor to the defendants, and he could have been compelled to do so and to hand over to them the proceeds, in whatever form received by him. So when he had received the note of the purchasers, it was his duty to deliver the note to the defendants on the receipt of his proper commissions; and no doubt upon the facts testified to in this case touching his employment, the defendants might, on discharging any claim for commissions, have maintained trover for the note if he had refused to deliver it to them, and had converted it to his own use. But if this be so, and if it be in the fullest manner conceded that an action of tort, either for the conversion of the note, or for the misappropriation thereof, or its amount would lie in their favor against him, this is not conclusive. The defendants were not confined in their remedy to an action for the tort; assumpsit would lie upon his contract, and when the note was paid to him, he became the defendant’s debtor to the amount of money received as the proceeds of their goods sold by him at their request. He was clearly liable to them as for so much money had and received to their use, and they could recover it in assumpsit, waiving the tort, and in this view of their right, their claim against him was as truly the subject of set-off as any other debt would be, (Butts v. Collins, 13 Wend. 154 and cases cited; Putnam v. Wise, 1 Hill, 240, and note,) and the price at which he took the goods to sell, would be prima facie evidence of the amount for which he was liable. The testimony shows, we think, prima facie, that he has in fact, received the proceeds in money.

The first ground of objection to the defense, therefore, fails, though the testimony be taken to present the case in the light most favorable to the plaintiffs’ argument; while on the other hand, if the defendants had a right to treat Noyes as himself the purchaser of the goods from them, notwithstanding his disclosure to them of the names of the persons to whom he sold them, Phelps, Vail & Co., then the right of the defendants as against Noyes, would admit of no question.

2. The second ground of resistance of the defendants’ claim to make the set-off, presents a question of more apparent difficulty, and yet we apprehend the principles applicable to the subject are well settled. In the language of Abbott, Chief Justice, in Baring v. Carrie, (2 Barn, and Aid. 137,) “if the defendants were to succeed in this case, the effect would be, that the goods of one man would be applied in discharge of the debt of another.” We add, nevertheless, that if their claim is sustained by principles or by authority that is to be regarded as settling the law on the subject, we are not to hesitate in sustaining their claim because it seems to .us to work injustice.

We are relieved from the necessity of reviewing at length the cases from which the principles governing the subject are to be gathered, by the lucid opinion of Bronson, J., in Hogan v. Shorb, (24 Wend. 458,) in which the Supreme Court of this State, in 1840, held, that where goods are sold by a factor as principal, to a purchaser who has no knowledge that he is acting as factor, or that he is not the owner, such purchaser may, in an action by the principal, for the price, set off a demand due to him by the factor. This decision does not appear to have been at any time since called in question in this State. The opinion begins with the doctrine of Rabone v. Williams, stated by Lord Mansfield in 1785, followed by Lord Kenyon in George v. Clagett, and Stracey et al. v. Decy, in 1789, and since that time by numerous cases in England, to the present day, (See 7 T. R. 359, 360, n. 361, n.,) and said never to have been questioned. That doctrine is, that “where a factor dealing for a principal but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him, to all intents and purposes, as the principal; and though the real principal may appear and .bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal. This has been long settled.”

It is upon the case of Hogan v. Shorb, and the cases therein cited, that the counsel for the defendants here mainly relies; and we unhesitatingly say, that if the present case is not distinguishable therefrom, the set-off claimed must be allowed to the present defendants. The opinion in- that case, however, suggests distinctions which we apprehend are equally'wrell settled.

It was held at nisi prius, in Waring et al. v. FavencJe, et al. (1 Campb. 85), and in Baring v. Corrie, (2 Barn, and Ald. 137,) that where a purchase is made by a broker without disclosing his principal, such principal cannot set-off a claim against the broker when sued by the owner for the price; and where goods are sold by a broker without disclosing his principal, the purchaser cannot set-off a debt due to him by the broker when sued by the principal for the price.

Another qualification of the rule is, that though the sale be made without disclosing the principal, yet if the purchaser knows or has .reason to believe that the seller, whether he be a broker or a factor, is not the owner, but i-s acting in the sale as factor or broker, the purchaser cannot make such set-off. And in Baring v. Corrie, above cited, it was held, that where the purchaser had means of knowledge and the circumstances were such as should have put him to inquiry, he was negligent in not inquiring, ■ and could not make such a set-off against the true owner. Such is the doctrine of Moore v. Clementson, (2 Camp. 22,) and Maanss v. Henderson, (1 East. 335,) and in Fish v. Kempton, (7 Man. Gr. and Scott, 687,) although the goods were sold without disclosing the principal, yet, it being found that the agents sold as factors, and that the purchasers knew that they were selling as factors, the set-off was not allowed.

So in this State, in Browne et al. v. Robinson et al. (Caine's C. in Error, 341,) though the factor (Cooke) did not disclose the name of his principal, and no evidence wag given that the purchaser knew that the sale was made by Cooke, as factor for the plaintiffs, or any other person, yet upon testimony that “ it was generally known that Cooke was factor to the plaintiffs ; but that he then transacted business as well on his own account as upon commission,” it was held that the purchaser could not set-off a debt due to him by Cooke. The opinion proceeds upon the ground that the purchaser was chargable with knowledge so that he could be said to “purchase from a factor scienter

And in Gordon v. Church, (2 Caine’s Term R. 299,) the same distinction is applied to an attempt, by an insurer, under a policy effected in the name of a broker, to set-off a debt due by the broker, against a claim for a loss made in an action brought in the name of such broker, for the benefit of the party for 'whose benefit the insurance was effected.

In accordance with this view, Bronson, /., says, in the opinion above referred to: “ When the name of the principal is disclosed at the time of the sale, the vendee has no right to set up any equities between himself and the factor to defeat the action of the owner; and. the same consequence will, I think follow, if the vendee knew, or had good reason to believe, he was dealing with the agent of another, although the name of the principal was not disclosed.” “ A more general knowledge that the person selling the goods is a factor, if he also carry on business on his own account, will not be sufficient to charge the vendee with notice. He must know,1 or have good reason to believe, that the vendor is acting as the agent of some other person in that particular transaction.”

It is also pertinent to observe, that in so far as the defendants’ claim to make the set-off derives any support from our statute in relation to factors and agents, commonly known as “ the factor’s act,” the purchaser is not aided at all by that statute if he know or have reason to believe that the person with whom he is dealing is acting as agent or factor. (Stevens v. Wilson, 6 Hill, R. 512, S. C. 3 Denio, 472 ; Zachrisson v. Ahman, 2 Sandf. S. C.R. 68 ; Bonito v. Mosquera, 2 Bosw. 401.)

There is no contradiction in the testimony in the present case. The transaction is detailed by the witness Noyes who made the sale of the plaintiffs’ goods, and the testimony of the defendants’ witness, does not differ from his statement.

Although Noyes calls himself a “ commission merchant,” the account he gives of the transaction in question and of his transactions with or for the defendants, indicates rather that he was a mere broker selling goods for a commission, than that he was a factor entrusted with the possession of the goods for sale; and that the defendants only knew him and dealt with him in his capacity of broker; for he says that he seldom did business on his own account, and there is not the slightest evidence that th"e defendants ever had'any knowledge that he did so in any instance, while he says that -his regular business ” was making sales for others, which he terms doing business as a commission merchant,” and he had been for three or four years in such business.

The goods were not entrusted to his possession to be sold; he was merely furnished with samples; and on his reporting to the plaintiffs the sale which he had made, they furnished him the goods for delivery to the defendants. The plaintiffs did not know that he sold the goods in his own name, and there is not any evidence that they authorized him to do so. According to what is testified to be usual, when sales were made by one as broker, he gave the plaintiffs the name of the purchasers, and within the month, (within which it is testified to be usual to hand over the note of the purchaser in such cases,) he gave the plaintiffs an order on the defendants for the note which, by the terms of sale, they were to give.

So in his dealings with the defendants. The very goods for which they claim to make a set-off, he says he sold for them. He was to give to them the note of the parties to whom they were sold. He told them he could sell them to a certain house, and they authorized him to do so. He had repeatedly sold goods for the defendants before— two or three bills during the previous month, and one subsequently ; he had known them for a number of years, and he says in terms, “they knew his business.” And finally, on this point he says, “ that he was acting as a' commission merchant, or perhaps a broker, at the same time.” And the clerk of the defendants, who made the purchase of the plaintiffs’ goods from him, expressly says: “ I know Mr. Noyes as a commission merchant and as a broker,” and as already observed, there is nowhere an intimation that the defendants had ever known him in any other capacity.

Upon this collection of the testimony, there is much reason for saying, that Noyes occupied to these parties the relation of broker, and nothing more, without any authority to sell in his own name, and without being entrusted with the possession of the goods for the purpose of sale ; and therefore, that the case is within the decisions above cited, which hold, that although a broker does not disclose his principal, the purchasers from him cannot set-off a debt due by him against the claim of the owner.

The terms “ commission merchant, or perhaps as broker,” are not so definite, (as they are used by the witness,) as clearly to bring the case within the’ rules applicable to factors having possession of goods for the purpose of sale, between whom and a broker the distinction is pointed out in Baring v. Corrie, above cited.

But however this ■ may be, and whether Noyes is to be called a “ broker,” a “ commission merchant,” or a “ factor,” the above recapitulation of the testimony seems to us to show, that the defendants had knowledge that he was dealing as a factor or broker, selling the property of others. He had so dealt uniformly with their goods; they knew him “ as a commission merchant or broker,” and not otherwise.

In connection with the circumstances already alluded to, one other fact seems to us to be conclusive. The bill of parcels which he delivered to the defendants as evidence of his sale to them, describes the sale itself as made from ' him as a commission merchant. This brought home to the defendants, knowledge not merely of the general fact that he was a commission merchant—their clerk knew him as commission merchant or broker—but it pointed out the transaction itself as made with him in that capacity.

Under all these circumstances, the defendants must, we think, be held to have known when they purchased the plaintiffs’ goods, that they were not purchasing from the owner ; that they were dealing with one who was acting as broker, factor, or agent, in making the sale.

And if actual knowledge is not to be conclusively inferred, it is doing violence to good sense to say that they had not reason to believe that he was acting in such capacity, and was selling the goods of some other person; and the testimony, on the part of the defendants is not inconsistent with this. He did not state for whom he was selling, and so the defendants’ clerk to whom he sold, did not know any other party; no other party was mentioned.

He was known to such clerk as a commission merchant or broker; he had long been accustomed to deal as such; he had been selling for the defendants themselves in that capacity; he described the very sale in question, in the written evidence thereof given to them, as a sale by him as a commission merchant.

Under such circumstances, we think the defendants are not entitled to apply the plaintiffs’ goods to the payment of the agent’s debt to them.

For these reasons, we think that the chief justice properly instructed the jury to find for the plaintiffs, and that judgment ther.eon should be rendered for the plaintiffs for the amount of the verdict and their costs.

Robertson, J.

—The defendants allege in their answer, by way of counter-claim, that one Noyes, a merchant doing business in the city of New York, sold to the defendants merchandize on a credit, and rendered a bill therefor, describing himself therein as a “ foreign commission merchant,” and, on the same day, bought of the defendants a larger amount of merchandize, on the like credit; that Noyes did not disclose, nor did the defendants know, that he was acting for any other person; and that the merchandize sold by him was in his possession, and was so sold as his own. There was no allegation in it as to the character of the business generally done by him.

On the trial, no evidence was given of the business generally transacted by Noyes, except by his testimony. He testified that he had been in business three or four years, and during that time had been a commission merchant; that he seldom did business on his own account, otherwise than as a commission merchant. On the subject of the possession of the goods sold by him to the defendants, he testified, that they had not been delivered to him, only a sample,; and that he obtained the goods from the plaintiffs, after the sale, in order to deliver them. The bill was rendered with a heading specifying Noyes to be a foreign commission merchant.

The goods claimed to have been sold by the defendants to Noyes, consisted of goods delivered by them to him to be sold by him as their agent, which he sold, and the proceeds of which he received and appropriated. The defendants knew the business of Noyes, and- had frequently employed him as their agent to sell goods for them.

If the case of Hogan v. Shorb (24 Wend. 458) contains the law of this State upon the right of a purchaser of goods, from an agent, to off-set a claim against such agent, every agent intrusted with goods to sell, can employ them to pay his own debt, even if an antecedent one ; notwithstanding, in all other cases, an antecedent indebtedness does not form a sufficient consideration to constitute a bona fide purchaser. That case carries the doctrine further than it is laid down by Lord Mansfield, in the case cited, of Rabone v. Williams, (7 T. R. 360, n. a.) In the present case, it does not appear which indebtedness. accrued first; but in that case, the exception is admitted of knowledge by a purchaser, of the existence of a principal; of that knowledge the facts that the agent is a mere broker, that is not intrusted with the possession of the goods sold, and not a factor in possession of them, or if such factor, that his sole business is as agent, are considered to be sufficient notice to the purchaser to put him on his guard. In this case, the inference from the facts in evidence appears to me irresistible, that the defendants had notice that Noyes was acting for another. • They had previously employed him as an agent; their clerk, who made the purchase, knew him to be a broker, as he testifies. They even believed him to be irresponsible. He was not in possession of the goods when he made the sale, and could only have sold them by the sample which he had, as any other broker. He had always been a commission merchant, and the bill rendered by him stated that he was one. It was immaterial whether they knew for whom he was acting ; they knew enough to put themselves upon inquiry. This principle is fully sustained by the cases cited in the argument, of Waring et at. v. Favenck, (1 Campb. 85 ;) Baring v. Corrie, (2 Barn. & Ald. 137 ;) Moore v. Clementson, (2 Camp. 22;) Maanss v. Henderson, (1 East. 355 ;) Fish v. Kempton, (17 Man. Gr. & Scott, 687 ;) as well as the cases of Browne and others v. Bobinson and others (Caine’s Cases in Error, 341), and Gordon v. Church (2 Caine’s T. R. 299), in our own courts. Whatever be the meaning of commission merchant, the non-possession of the goods deprived Noyes of the indicia of ownership which could alone aid the defendants.

I concur with Justice Woodruff in his view of the instructions of the chief justice on the trial, and think judgment should be rendered for the plaintiffs, for their claim, undiminished by any off-set, and for their costs.

Ordered accordingly.


text:
    John Harding, Plaintiff and Respondent v. Danforth N. Barney, as President, &c., Defendant and Appellant.
    1. The defendant was sued as president of the joint stock association doing business under the name of Wells, Fargo &. Co., to recover the amount of a draft alleged to have been bought by him of that company, on the 18th of March, 1856, at San Francisco, drawn there by that house on itself, payable at Boston, and alleged to have been lost. There was great doubt, upon the evidence, whether the draft was bought of this or of another house: One Burbank, who had been examined under a commission, testified that, on the 17th of April, 1856, he went to the banking house of Wells, Fargo &. Co., at San Francisco, and applied to a man in the office for a duplicate of this draft; and to what the man then said. That he was again there, between the middle of June and 18th of September, 1857; saw Messrs. Bell & Wash-burn, two of the company’s officers, and applied to them for a duplicate. They said their books did not show that such a draft had been given. He further said, “ I examined such books as they showed me, and was not able to find any account of such draft. I stated to them that the man of whom I inquired in relation to the draft, several months before, informed me that such draft had been given, and that when he so informed me, he turned to some books in the office, and said that the books showed that such a draft had been given.”
    2. The court was requested to charge, that the jury had no right to infer from this evidence, that the man whom Burbank first saw, did, at "that time, turn to some books in the office, or that he said the books showed that such a draft had been given.
    3. The court refused so to charge, but charged that “ Burbank’s testimony does not, in terms and words, allege the fact that the clerk, on the first occasion when he called, examined the books, and said the draft had been drawn, &c., and it is for the jury to say how he is to be understood.”
    4. Held, that the instruction given was calculated to mislead and was erroneous, and entitled the defendant to a new trial.
    5. Whether counsel have a right to specific instructions in relation to the sufficiency of designated evidence to justify an inference of material facts which are only collateral, and not directly in issue, quere ?
    6. Where the court, in such a case, gives specific instructions, they must be correct, or an exception to them will be sustained.
    (Before Woodrurr, Moncrier and Robertson, J. J.)
    Heard October 2,
    decided November 10, 1860.
    Appeal, by the defendant, from a judgment for the plaintiff, on the verdict of a jury ; and also, an appeal from an order at special term, denying a motion for a new trial.

      The action was tried on the 20th day of October, 1859, before Mr. Justice Slosson and a jury. It was brought against the defendant, as president of a joint stock company or association, doing business under the name of Wells, Fargo & Co., at New York, Boston, San Francisco and other places, as carriers of goods, money, gold dust and other property, and selling drafts or bills . of exchange, drawn upon themselves, payable -at New York and Boston, to recover the sum of $3,300—the amount of a draft or bill which the plaintiff alleged he purchased from them, at their office in San Francisco, on or about the 18th of March, 1856, drawn by them upon themselves, payable to the order of the plaintiff, at sight, at the office of the company at Boston, and for which draft he paid to them the sum of $3,366. The plaintiff alleged that he lost the bill so purchased, while returning from San Francisco to Boston ; that it had never been indorsed by him, and that he believes that the same is wholly destroyed. That on or about the 10th of June, 1856, he demanded the said sum of $3,300, of the defendants, at their office in Boston, and offered to indemnify them by good and sufficient indemnity against the said bill. Upon the allegation of these facts, the plaintiff demanded judgment for the sum of $3,300, and interest from the 10th of June, 1856.
    The answer admitted that the defendant was president of the joint stock company or association named, and that their business was in substance as stated in the complaint; and the answer denied all the other allegations.
    On the trial, the proofs on the part of the plaintiff tended to show that, on or about the 18th March, 1856, he then being in San Francisco, had in his possession upwards of $3,300 in gold ; that being about to return to the State of Maine, he went to the office of Wells, Fargo & Co., and purchased 'a draft upon the same association or company, payable to the order of the plaintiff at their office in Boston, for the sum of $3,300, and paid therefor a premium of two per cent., or in all $3,366. That on reaching the Isthmus of Panama, the plaintiff, during a riot there, was robbed of his money-belt, containing the draft, and that he has never recovered it. That, on arriving at Boston, he notified the defendants of the loss of the draft, and then and after-wards demanded the amount. .In giving the particular details of what transpired at the office where he stated he purchased the draft, the testimony of the plaintiff indicated that wherever the transaction occurred, it was entered in a book, or books, of the office. '
    The main ground of defense was, that the plaintiff did not purchase the draft at the defendant’s office in San Francisco. That if he purchased any draft, it was at some other office; and that the plaintiff, not being able to read, has been mistaken as to the parties who received his money, or been defrauded by persons other than the defendants. And the defendants gave evidence tending to show, by their agents there, that no such money was received from the plaintiff, and no such draft was sold to him by the defendants. On the part of the plaintiff, the deposition of Caleb Burbank, a practising lawyer, residing in San Francisco, was read in evidence, containing the following answer, viz: To the fourth interrogatory, hesaith : “ On the 17 th day of April, 1857, I went to the banking house of Wells, Fargo & Co., in San Francisco, and requested a duplicate draft of thirty-three hundred dollars of a man who was in the office, whose name I did not know; I stated to him that I was requested to call for a duplicate of a draft, that this bank had given to John Harding some time before that, and the reply of this man was, that the banking house had given the original and duplicate to Mr. Harding, and had no power to draw or issue a third ; he also said that the house had sent the funds to New York, with a certificate of that fact; and that the draft I inquired for had been issued, and that the remedy of Harding would be in New York, and not in San Francisco. Sometime between the middle of June and 18th September, 1857, witness again called at the banking house ofiWells, Fargo & Co., ‘for a duplicate of the aforesaid draft, and I there saw Mr. Bell and Mr. Washburn ; they said that their books did not show that any such draft had been given; and 1 examined such books as they showed me, and was not able to find any account of such draft; I stated to them that the man of whom I had inquired in relation to the draft, several months before, informed me that such draft had been given, and that, when he so informed me, he turned to some books in the office, and said that the books showed that such draft had been given. Mr. Washburn and Mr. Bell seemed to be surprised at such a statement, and they said that if any evidence could be found that the bank had given such a draft, it would be paid.”
    Before, on, and subsequent to the 18th of March, 1856, Mr. Bell was superintendent of the banking and exchange department of Wells, Fargo & Co., in San Francisco, and Mr. Washburn was, at the same time, superintendant, under him, of the exchange department of the 'business, of the same house.
    The testimony of the parties, respectively, presented a case of great conflict (arising from all the circumstances) on the question whether the draft was purchased at the defendants’ office ; and it was claimed by the defendants, that the credibility, or at least the accuracy, of the plaintiff and his witnesses, was shown to be in great doubt. The defendants also gave evidence to show the manner in which their business Avas done in their office at San Francisco ; the course of successive entries, through their books, which was made of the moneys received and drafts issued there, and that there was not in their books any entry of the transaction in question.
    When the testimony was closed, the cause was summed up, and the court then proceeded to charge the jury.
    The counsel for the defendant asked the court to charge the jury, that they had no right to infer from Burbank’s evidence, when he called at the office of Wells, Fargo & Co., the second time, and saw Bell and Washburn, and stated to them that the man, of whom he had inquired in relation to the draft, several months before, informed him that such draft had been given, and that when he so informed him, he turned to some books in the office, and said that the books showed that such draft had been given, that the person or clerk to whom he referred, did turn to some books in the office, or that he said that the books showed that such draft had been given.
    The court refused so to charge, and charged as follows:
    Burbank’s testimony does not, in terms and words, allege the fact that the clerk, on the first occasion when he called, examined the books, and said the drafts had been drawn, &c., and it is for the jury to say how he is to be understood.
    Defendants’ counsel excepted to such refusal to charge as requested, and also excepted to the charge of the judge, as above made.
    The jury rendered a verdict for the plaintiff, for the amount of the alleged draft and interest, ($4,080.13.) The defendants moved, at special term, for a new trial, and the motion was denied, and judgment was entered for the amount of the verdict and the costs, ($4,591.49.) From the order denying the motion for a new trial, and also from the judgment entered for the plaintiff, the defendants appealed to the general term.

      William Fullerton, for Appellant.
    I. The refusal of the judge to charge the jury as requested was error.
    Burbank’s evidence is only a relation of what he stated to Bell and Wasburn, and not what actually occurred at the first interview. He does not swear that the books were turned to, or that the man in charge said the books showed that such draft had been given, but that he told Bell and Washburn so. This, of course, does not prove the fact.
    II. It was an error, also, in the judge, to leave it to the jury to say how the witness was to be understood.
    There was no dispute as to the language used by the witness, neither did it contain any hidden meaning. It was neither obscure nor equivocal.
    “ How the witness was to be understood,” therefore, was a question of law, which should have been determined by the court, and not left to the jury.
    The jury were virtually told that they were at liberty to understand that a clerk of the defendants examined their books, and said that they showed that the draft in question had been issued. This was erroneous, and the judgment should be reversed.

      J. T. Williams, for Respondent.
    I. The refusal to charge as requested was not error. (6 Wend. 268.)
    1. A part only of the evidence, tending to show what transpired between the witness and the clerk, was recited, and the court was asked to charge that such part was not sufficient to prove a (collateral) fact.
    2. The court then charged generally, that the jury are to say how a witness (as to the whole of his testimony), is to be understood.
    3. The fact as to what occurred between the witness and the clerk was not in issue, and the jury were not bound to find upon it at all. (14 Wend. Ill; 12 Wend. 78-103; 4 Peters, 1.)
    4. A fortiori, the court was not bound to charge upon it ■ at all.
    5. The charge as to the fact, was most favorable to the defendant.
    6. A part of the charge, namely : “Burbank’s testimony does not, in terms and words, allege the fact,” &c., could not well be excepted to by the defendant; yet the exception is to this part as well as to the remainder of the charge. If any part of a charge excepted to under one exception, be unexceptionable, the whole exception must fall. (1 Comst. 79 ; 3 Seld. 266; 4 Seld. 37; 2 Kern. 313; 5 Seld. 171; 1 Seld. 422.)
    7. It is always competent to leave the testimony of any witness to the jury, under the charge, “ you are to say how he is to be understood.”

      8. In no view could this charge have affected the verdict. (21 Wend. 354 ; 12 Wend. 504.)
    The judgment should be affirmed.
   By the Court. Woodruff, J.

—It is quite apparent that the question whether or not there was in the defendants’ books kept at their office in San Francisco, an entry of the sale of a draft to John Harding, on the 18th of March, 1856, for $3,300, was of the utmost importance. The proofs, irrespective of this question, made it in no slight degree doubtful whether the transaction to which the plaintiff had testified, did not take place at some other office in San Francisco. But if, upon the defendants’ books there was entered in due course of business, such a draft, that fact was conclusive in favor of the plaintiff, not perhaps conclusive as an estoppel, but in the circumstances of this case so determinative and final, as evidence that they received the plaintiff’s money and issued the draft, that a verdict for the defendants would have been against evidence and could not have been sustained.

It is true that it was not the precise question in issue ; the defendants might possibly have received the money and issued the draft and no such entry have been made; but the entry could not have been made unless they had issued the draft which the plaintiff received; so the entry, if proved, directly established according to the inevitable judgment of the jury, the very point in issue between the parties.

The account given of the transaction by the plaintiff, made it in a high degree probable, if not certain, that at the office where it took place, the book or books were used in perfecting it. The testimony on the part of the defendants showed, that when drafts were sold by them at their office, there was made at the time an entry in the books stating the transaction, and particularly an entry of the purport of the draft,'in the margin of the book from which the drafts were taken; and therefore the very question whether the defendants sold to the plaintiff the alleged draft and received his money, might well turn upon the conclusion of the jury, from the evidence, that such a draft was entered in the defendants’ books.

In view, then, of the vital importance of the question, the defendants’ counsel requested the judge to charge the jury, that they had no right to infer from Burbank’s testimony, to his conversation with Bell and Washburn at the defendants’ office; that, in truth, he did on a former occasion see in that office a book which a clerk examined in his presence, and said the books showed that such a draft had been given.

It is entirely clear, I think, that as matter of law, no such inference was warranted by Burbank’s testimony, to that conversation. He did not say in any part of his evidence, that he saw such a book, or that the clerk turned to or examined any book, or that the clerk said that the books showed that such a draft had been given, but only that he, (Burbank) told Bell and Washburn so. What he told Bell and Washburn, was not only not legal evidence for any purpose, but it did not prove, nor did it warrant a jury in inferring from it, that the circumstances existed. They were not parties to the suit; such a narration by Burbank to them, whether they denied its truth or were silent, could not legally be taken as an admission that the matters narrated were true. Had this part of Burbank’s testimony been objected to, it must have been excluded. Being given, without objection, it proved nothing, except that Burbank did say to Bell and Washburn what he testifies he said to them.

It does not however follow that the refusal of the judge to give the instruction, was ground of exception. I am not prepared to say, and in this case I do not think it necessary to say or to deny, that counsel may select separate pieces of testimony and in reference to each require an instruction to the jury defining the inferences of fact which they may or may not draw from it. It can readily be perceived, that a practice which allowed this, might lead to great embarrassment, and be so inconvenient as to render the proper and safe conduct of a trial almost impossible. And yet I think it quite clear that it is error to instruct a jury that they may find a material fact from the proofs where there is no legal testimony of such fact; and that it is no less an error to instruct a jury that particular evidence will warrant them in inferring a material fact when no such inference can legally arise therV-’:m.

In this aspect of the subject, the in?' m actually given by the judge, becomes most impc He not only refused to charge that they were not wacc;.:v:edin inferring the facts from the testimony that Burbank r-r sauted to Bell and Washburn, but he said:

“ Burbank’s testimony does not in terms and words allege the fact that the clerk, ontho first occasion when he called, examined the books and said the draft had been drawn, &c.; and it is for •the jury to say how he is to be understood.”

Now the testimony of Burbank was in writing, the language was perfectly intelligible; it did not admit of doubt as to its proper meaning; it meant, and it could not legally be held to mean anything more than its terms legally imported, viz : that he told Bell and Washburn just what he said he told them.

In connection with the defendants’ request, this submission to the jury to say “ how he is to be understood,” seems equivalent to saying, “ I not only refuse to instruct you that you may not infer from this testimony that the books were examined and that the clerk stated that they showed that such a draft had been given, but I do instruct you that you will commit no error if you make that inference ; and not only so, you may, if you think proper, conclude that the witness is to be understood as testifying that the facts are as he stated them to be.” When the particular testimony which is the subject of instruction, will not warrant an inference of a material fact, the court ought not to submit it to the jury as the ground of conjecture, or leave it to them to infer the fact therefrom.

These views are sustained by Manwell v. Briggs, (17 Verm. 176 ;) Evans v. Mengel, (1 Barr. Penn. 68 ;) Gilchrist v. Rogers, (6 Watts & Serg. 488 ;) Cobb v. Fogalman, (1 Iredell, 440 ; Hunt v. Toulmin, (1 Stew. & Porter, 178.)

Whether the counsel have or have not a right to call for such specific instructions in relation to facts which are themselves only collateral and not directly in issue, when the court do assume to give specific instructions respecting such facts, those instructions should be correct, or, as I think, an exception must be sustained. Had the judge in this instance simply refused to give the instructions asked for, or if he had contented himself with saying that Burbank had not sworn that the clerk informed him that the draft was given, and examined a book and said that the book showed that the 'draft was given, the argument urged upon us that a judge is not bound to give specific instructions relating to collateral facts, or facts which are not directly in issue, but which, if proved, are only evidence from which, by way of further inference the fact in issue is to be derived, would have had much plausibility at least. But here, according to the charge, as it may well have been understood, the jury were told that they were to say whether Burbank’s testimony imported that the clerk informed him, and did examine the books, and state that the books showed that such draft had .been given.

If I were satisfied that, according to the strictest rule, the defendant was not entitled to an exception; that the refusal and charge was susceptible of a construction consistent with the law, was so indefinite in its meaning that we could not say it was necessarily against the law, I must nevertheless say that it was calculated to mislead the jury in a matter which (where the other testimony was doubtful and conflicting) was vital to the case, and therefore to require us to grant a new trial.

Its tendency, to my mind, went even further than is above suggested. The jury may easily have concluded, (from the refusal of the judge to charge as requested, and from the manner he left the subject to them,) that they would be warranted in inferring, from this part of Burbank’s testimony, not only that the clerk examined the book and told him what he stated, but that he did there find the entry in the book, produced and examined. I cannot resist the conclusion, that the manner in which this testimony was submitted to the jury, invited their speculation and conjecture founded thereon, and tended to do injustice to the defendants by allowing inferences respecting a material question which the testimony did not war-want. (Benham v. Cary, 11 Wend. 83.)

The case seems to us to illustrate the danger and the impropriety of supposing what seems to us worse than hearsay testimony to be put in, and then calling upon the court to define and limit its effect, and declare what inferences may be drawn therefrom. Had the defendants objected to it, no such embarrassment'could have, we think, arisen; and had the court, when asked to make it the subject of specific instruction, simply declared that it proved only what it purported, viz., that such a conversation took place, we should riot be disposed to interpose. The defendants could not in that event have asked us to set aside the verdict on any idea that the jury were probably misled by the evidence itself. But the manner in which the testimony was specifically left to them we think was wrong, and that it was calculated to mislead them on a very important question when the case was, upon the whole evidence, of a very doubtful character.

A new trial should be granted with costs to abide the event.

Robertson, J.

—The exception to the refusal to instruct as requested, I do not think well taken. .1 do not deny that, if a party fears that a jury may draw an inadmissible inference from facts legitimately in evidence for other purposes, and there is room for believing there may be danger of it, he has a right to request the court to warn the jury against making such inferences ; but the evidence from which the defendant feared that the jury would infer the fact of an entry in the books, was not even hearsay evidence of it, 'unless the fact that a witness said so to another person be such evidence. If such evidence had not been material in any other ,i .... -f view, and was only admissible if unobjected • : -■ - .c-arsay evidence of a material fact, it was clearly duty of an objecting party, to object to hearsay testimony when it is given, and not to wait for the charge of the court in order to request an instruction to the jury to disregard it, which might bring up a variety of intimate and perplexing considerations. I do not find this testimony to be hearsay evidence of the fact in controversy. If the witness had stated that some one had told him that there was in some book the entry which formed the subject of investigation, it would be such hearsay evidence; but as he only swore that he told a third person that he had been so informed by some one else, without swearing that he had been so informed, the only fact of which such testimony is evidence is, that he had made such statement, which, whether true or false, was wholly immaterial and irrelevant. The request to charge, refers entirely to the second conversation, and therefore the character of the first is entirely immaterial. The question then recurs, whether a party has a right to require a court to charge a jury that testimony which is neither primary -nor secondary, nor circnmstantial nor hearsay evidence of a fact, does not tend, to prove it; and it appears to me not, particularly where such fact is not itself directly in issue, but is only circumstantial evidence thereof. It would lead to a wild and visionary speculation as to what might possibly influence a jury; or a trial of skill and ingenuity between the court and counsel as to what imaginary state of facts might be circumstantial evidence of the main facts in issue, and wThat part of the testimony might, by possibility, be taken by the jury to be proof of the existence of such imaginary facts. Jurors, it is true, may come to a conclusion by mental processes other than those of the most logical or legal character ; and to guard against the danger of such operations, counsel have the privilege of addressing them ; but the court cannot be required to check every imaginable mental vagary, by solemn instruction that it is not legal. It cannot be anything but such a vagary that would infer that there was an entry in the books of the defendants, because a witness had testified that he had once told a person in the defendants’ office that another person had told him, at another time, in that office, that there was such entry. I therefore think the request to charge was properly denied.

But the actual charge consequent upon such refusal, is open to more criticism. Standing by itself, it is apparently harmless and unobjectionable, for the witness in question did not allege, that on the first answer when he called, the clerk examined the books, although he did say the drafts had been drawn, and it was doubtless a matter for the jury to say how he was to be understood if there was any doubt about his language; but taken in connection with the. previous request to charge and the use of the qualification “ in terms or words,” and the previous part of the sentence, the words how he “ is to be understood,” is to be qualified by adding, “in respect to such clerks, having examined the books.” This, undoubtedly, was equivalent to charging them that they were at liberty to construe his testimony into an implied statement that such clerk did examine the books. I do not think there was legally, enough cf improbability that the clerk made the statement he did, without looking at the books, as was suggested in the argument, to have warranted the court in instructing the jury that they were at liberty to infer that the witness meant to testify that the clerk did look at the books, by testifying either that such clerk said the draft was drawn, or that the witness had stated that the clerk had looked at the books.

The jury, taking the permission awarded them by the court, may have understood the testimony of the witness as implying, although not in terms stating, that the clerk did inspect said books before he made the answer; that the existence of the entry there was the justification of such answer, and that therefore the draft was bought of the defendants and of no one else. For such a prejudice to the defendants, the only remedy is a new trial.

I concur in thinking, that a new trial should be ordered, with costs to abide the event.

Ordered accordingly.