author: Opinion by Mr. Justice Catón :

text:
    Matthias B. Denman, plaintiff in error, vs. James Bloomer, defendant in error.

      Error to Jldams.

    An agent appointed for a special purpose, cannot go beyond tbe scope of sueb appointment and bind bis principal ,* nor can he act after such employment ceases, by his having completed the business, to transact which he was constituted an agent. But within the scope of such employment, and until the power conferred is exhausted, or revoked, the agent can bind the principal, to the same extent that the principal can bind himself.
    Each party asking instructions from the Court, should see that the instructions are proper in themselves. It is not sufficient that the necessary qualifications of them, may be found in the instructions given for the opposing party.
    This was an action of assumpsit, brought by Denman, the plaintiff in error, against Bloomer, defendant in error, to recover money paid by Denman to Bloomer, agent. Plea, non-assumpsit. The plaintiff proved that, in July, 1848, a man named Johnson, came down the Mississippi river to Quincy, where Denman lived, with a raft of lumber. That Johnson represented to said Denman that said raft belonged to the defendant, Bloomer; it having been taken by him from a man by the name of Clinton, in payment of a debt due from Clinton to Bloomer; that Denman agreed to buy said raft of Johnson; that a day or two after the terms of said purchase were agreed upon, the raft arrived, Johnson having preceded it to Quincy; that it was landed at a place where the clerk of Denman was not willing to receive it, on account of the inconvenience of taking it from the water; that it was moved two or three blocks lower down the river, to a place designated by Denman’s clerk, and landed; that said clerk did not think the raft safely landed, and so expressed himself to Johnson, who then had the raft in charge; that Johnson replied that it was safe, and he would insure it; that the person in charge of the raft left it, and Johnson went to Denman’s office, and Denman paid Johnson $300, which Johnson paid to his men. The balance of the money was to be paid when the timber should be taken from the water and measured; the timber was to be removed from the water at Denman’s expense. The next morning the raft was gone. At the request of Johnson, one of Denman’s men went down the river in search of it, in a small boat, with other men. Johnson went down on a steamboat. Denman’s man found the raft at Hannibal; and when Johnson, who had gone as far as Alton, was apprised by telegraph of this fact, he returned to Quincy, settled with Den-man, and agreed that he would take said raft under his own charge, and repay said Denman the $ BOO, paid by him to Johnson, and, also, the expense incurred by Denman’s man, named Naylor, in securing said raft at Hannibal. Johnson went to Hannibal, took charge of the raft, and took it down the river, and said Naylor returned to Quincy, bringing with him Johnson’s draft for $ 345, drawn on said Bloomer. Johnson had arranged with Denman, at Quincy, that after learning the amount of expenses from Naylor, he would give Naylor a draft on a firm in Hannibal, or on his principal, Bloomer, for all the money paid by Denman j which draft he promised should be paid at maturity. The draft was never paid, nor any of the money advanced by Denman.
    The above is the substance of the testimony of Woodruff, who was Denman’s clerk. The said Naylor, Denman’s agent, testified, in substance, the same matters.
    Aaron Denman, the father of plaintiff, testified, that, in August, 1848, being on his way to Galena, he took with him Johnson’s draft on Bloomer, for acceptance. Bloomer was unwilling to accept said draft, until he had heard further from said Johnson ; but said the draft should be paid, and admitted that Johnson was his agent, and requested one E. N. Turner to write on the face of said draft that he declined accepting it, on the ground that he had not heard from Johnson on the subject, “ but acknowledged Mr. James M. Johnson to be his legal and authorized agent.” This was written on the draft by said Turner, at the request of Bloomer, and in his presence. The witness believes that he told Bloomer on what account the draft was drawn by Johnson, in favor of plaintiff, Denman. The plaintiff, also, gave in evidence said draft, with the indorsement above stated on its face. The defendant produced the said Johnson as a witness, who testified that one Clinton was the owner of said raft; that Clinton brought it to Galena, where Bloomer lived; that Clinton was in debt to Bloomer, and it was agreed between Clinton, and Bloomer, that the raft should be sent to market at Clinton’s expense, and that Johnson, who was Bloomer’s clerk, should go down the river and make sale of the raft, and, after paying expenses, the proceeds should be paid over to Bloomer on Clinton’s debt; the raft was to be sent to market at Clinton’s expense and risk, and he was to pay Johnson, and Johnson was to he his agent for the purpose of selling the raft, and Bloomer’s agent for the purpose of receiving the money. The witness came down the river in advance of the raft, to Keokuk. When the raft arrived at Keokuk, witness came down to Quincy, and made the sale. He denies that he represented to Denman that Bloomer was the owner of the raft, or that he was Bloomer’s agent to sell the raft. His account of the landing of the raft, and the payment of the $ 300, by Denman, is substantially correct, except that he says he deemed the delivery of the raft complete. He admits that he drew the draft on Bloomer, given In evidence, under the circumstances detailed by the other witness, but says he had no authority to draw the draft, but thought he had been badly used by the plaintiff; was among strangers, in a difficulty, and was determined to extricate himself in the best way he could. The witness took the raft at Hannibal, sold it, and paid the proceeds, after deducting expenses, to Bloomer. Witness was, and had been for several years, the clerk of Bloomer, and his agent in transacting the business of Bloomer, who is a lumber dealer, and received a salary from Bloomer, which continued to run whilst engaged in this expedition down the river, though he was also paid for this trip by Clinton.
    In the progress of the trial, the following instructions were given, at the instance of the defendant: 1. The Court is asked to instruct the jury, for the defendant, that if they believe from the evidence that the raft of lumber belonged to Clinton, and was intrusted by Clinton to Johnson, to be sold on his, Clinton’s, account, and to be at the risk and cost of Clinton, until it was sold, that then Bloomer is not liable for any costs or expenses incurred on account of the raft, although the proceeds of the raft when sold were paid over to Bloomer, on a debt due him by Clinton. 2. That if they believe from the evidence that the raft was the property of Clinton, and was to be carried to market at the expense and cost of Clinton, and not at the cost of Bloomer, and that Johnson was acting for Clinton, and at his request, in the sale of the lumber, that then Bloomer would not be responsible for money received or expenses incurred by Johnson, in getting the raft to market. 3. That the fact of Johnson being along with the raft, for the purpose of receiving the money, and paying it over to Bloomer, on Clinton’s account, would not authorize Johnson to bind Bloomer for expenses incurred in taking the raft to market, if the jury believe from the evidence that the raft was the property of Clinton, and to be taken to market at Clinton’s expense. 4. That the fact of Johnson being the clerk of Bloomer, and engaged in transacting business for him, would not authorize Johnson to bind Bloomer for expenses incurred by Clinton, in reference to Clinton’s business. 5. That the jury ought not to find a verdict against Bloomer in this case, unless they believe from the evidence, that the raft, on account of which the money was obtained, was the property of Bloomer; or that Johnson had authority from Bloomer to bind him for debts contracted on account of said raft. 6. That if the jury believe from the evidence that Johnson drew a draft in favor of Denman on Bloomer, without authority from Bloomer to do so, that then Bloomer would not be responsible for the amount of said draft, but that Denman would have to look to Johnson for the amount of said draft. 7. That unless the jury believe from the evidence that Bloomer is indebted to Denman, for money lent by Denman to Bloomer, or for money paid by Denman to Bloomer, at Bloomer’s request, or for money received by Bloomer for Denman, or for money found to be due from Bloomer to Denman, on a settlement of accounts between them, that then they will find a verdict for the defendant. 8. That even if the jury believe from the evidence that the raft in question belonged to the defendant, Bloomer, and that he sent Johnson down the river with said raft, to sell as his, Bloomer’s, agent, and pay the proceeds of such sale to Bloomer, and if the jury further believe from the evidence that said Johnson, in pursuance of his said agency, sold the said raft to Denman, and delivered it to Denman’s agent, at the place specified by him for that purpose, and that Denman thereupon paid said Johnson a part of the purchase money of said raft, then, under these circumstances, the said Johnson would not have any right to rescind said sale, and draw a draft upon Bloomer for the amount paid him by Denman; nor would Bloomer be legally bound to repay Denman the amount so paid by him to Johnson.
    To the giving of these instructions the plaintiff excepted,. The plaintiff then moved the Court to give the following instructions ; which was done: 1. If the jury believe from the evidence that Johnson was the duly authorized agent of Bloomer 5 that as such agent he had control of said raft; that he represented to Denman that Bloomer was the owner of said raft; that Denman, relying on his representations, dealt with Johnson in relation to said raft under the belief that Bloomer was the owner thereof, that belief having been induced by the representations of Johnson, then Bloomer is not permitted in this suit to deny that he was the owner of said raft. In such cases the principal is bound by the representations of his agent, made at the time of transacting the business about which the representations were made. 2. If the jury believe from the evidence the facts upon which the first instruction is predicated, in regard to the agency and representations of Johnson; and if they further believe from the evidence, that after said raft broke from its fastenings, said Johnson took charge of said raft, in behalf of his principal, and on a settlement with the plaintiff, promised, on behalf of the defendant, to repay said plaintiff whatever money had been paid and expended by said plaintiff about said raft, then no question arises in the case about the delivery of said raft to the plaintiff, before said raft broke from its fastenings, and the jury will find for the plaintiff a verdict for such amount as he may have paid upon and about said' raft, with interest thereon from the time such amount was to be repaid to said plaintiff. 3. If the jury believe from the evidence that the agent of the defendant, duly authorized by the defendant to transact his business in relation to said raft, admitted, in a settlement with the plaintiff of the business arising from said raft, that the sum of $ 345 was due to the plaintiff from the defendant, then such admission is the same as if it had been made by the defendant himself. An admission by a man’s agent, in relation to business which he is authorized to transact, and made at the time of transacting such business, is regarded by the law as an admission of the principal himself. 4. If the jury believe from the evidence that Denman paid a certain sum of money to Johnson, as agent of Bloomer, which money Johnson was authorized to receive, and did receive, as agent of Bloomer, and used for Bloomer’s benefit, then the jury will find for the plaintiff a verdict for such sum, with interest thereon from the time such money was agreed to be repaid.
    The defendant then moved the Court to give the following instruction; which the Court accordingly gave: 9. That although the jury may believe from the evidence that Johnson was Bloomer’s agent, and in his employ for the transaction of his, Bloomer’s, business, that this would not authorize Johnson to bind Bloomer for debts incurred in relation to the business or property of other persons. And if they, also, believe from the evidence that the raft was the property of Clinton, that then Johnson would have no right to bind Bloomer for the expenses of said raft, notwithstanding he was Bloomer’s agent at the same time, for other purposes.
    To the giving of this instruction plaintiff, also, excepted.
    The following instruction was given, at the instance of the plaintiff: 5. The jury are further instructed, that the instructions asked and given for the defendant in this case, while they lay down correct principles of law, are yet to be taken by the jury, subject to the modifications to be drawn from the instructions given for the plaintiff in this case, relative to the manner in which an agent can bind his principal, and in relation to the manner in which a man may be estopped from denying what his duly authorized agent has represented to other persons dealing with such agent.
    The defendant then moved the Court to give the following instruction : 10. That the plaintiff’s instructions are given subject to all the modifications contained in those given on behalf of defendant; which the Court accordingly gave, and the plaintiff excepted. The jury found a verdict for the defendant. A motion for a new trial was made, and overruled, and judgment given for the defendant. Cause heard before Minshall, Judge, at June term, 1849. The plaintiff sues out the writ of error, and brings the cause to this Court.
    In support of the motion for a new trial, the plaintiff filed his .affidavit, stating that he had been greatly surprised by that portion of the testimony of Johnson which stated that he, Johnson, was the agent of Clinton, and not of Bloomer, in selling the raft; and that he had no witness present at the trial to rebut this statement, but that he could rebut that portion of the testimony by divers persons, whom he named: the affiant never having heard, prior to the trial, the name of Clinton in connection with the transaction.
    The plaintiff assigns for error, the giving of the instructions for defendant, and the refusal to grant a new trial.

      Williams & Lawrence, for plaintiff in error:
    The first instruction was wrong, because founded on a partial view of the case, and because it takes from the consideration of the jury, altogether, the facts which the plaintiff’s evidence undeniably tended to prove, and, as we contend, did satisfactorily prove. This instruction directs the jury to find for the defendant, if they believe merely that the raft belonged to Clinton, and was intrusted by him to Johnson, to be sold. Yet there was strong evidence to show that Johnson was Bloomer’s agent, and that Denman dealt with him as such; and that in such dealings Johnson represented to Denman that the raft was Bloomer’s. If the jury believed this evidence, then Bloomer was estopped to deny that the raft was his, although in point of fact it belonged to Clinton. 1 Greenleaf Ev., 249, sec. 207-8; ibid, sects. 113, 114. The first instruction, then, should have received such a qualification as the following: “ Unless the jury further believe that Johnson was the authorized agent of Bloomer, in regard to this raft, and that in selling said raft to Denman he represented it to be Bloomer’s property, and that he was Bloomer’s agent, and Denman dealt with him in the manner he did on the faith of such representations, in which case they must find for the plaintiff.” “ When the language of an instruction as asked is calculated to mislead the jury, it should be so modified or changed as to prevent such a result.” Hays vs. Borders, 1 Gilm., 66. A party asking instructions must either confine them, (if they are of partial application only,) in terms, to the particular issue to which they were intended to apply; or must modify them in such a manner as will make the jury aware that it is only in the event that other issues are not found against him, that they can base their verdict, if supported by facts, on the law, as asked in his favor by him. Vanlandingham vs. Huston, 4 Gilm., 127. As an instance of how the Court should and does modify instructions, when of partial application, in cases where there are not different issues but conflicting evidence, see Baxter vs. The People, 3 Gilm., 383. The law of 1846-7 in regard to instructions, does not change this rule. Bunn as. The People, 4 Gilm., 441. The fourth instruction was manifestly wrong, for it asserts the extraordinary proposition that an agent cannot bind his principal for expenses incurred by a third person, in reference to such third person’s business, though it is equally the business of the agent’s principal. As applicable to this case the instruction says, that Johnson could not bind Bloomer, in reference to Bloomer’s business, if it was also the business of Clinton. The fifth instruction is liable to the same objections urged to the first. The sixth instruction was clearly wrong, since it goes upon the idea that the suit was brought upon the draft; which was not the fact. The seventh instruction was designed and calculated to mislead the jury, and could have no other effect, and submitted to the jury a question of law. The eighth instruction asserts a proposition of law that is clearly wrong. A special agency includes general powers as to the object of the special agency. The case of Anderson vs. Coonley, 21 Wend., 279, is decisive as to this point. So also the note to Story on Agency, 3d edition, page 148, sec. 127. But this instruction, in substance, directs the jury that even a general agent cannot rescind a sale. The ninth instruction is open to the same objections urged to the first and fourth. Where an erroneous instruction of the Judge could have influenced the jury, a new trial will be granted. Lane vs. Crombie, 12 Pick., 177; Boyden vs. Moore, 5 Mass., 371; Pate vs. The People, 3 Gilm., 661; Snyder vs. Lapamboise, Breese, 268; Elting vs. Bank of U. S., 6 Pet. Con. Rep., 220; Wilson vs. Rastall, 4 Term R., 758, bottom paging; Williams vs. Cheesbrough, 4 Conn., 362. And this, though the evidence may have justified the verdict. Leonard vs. Smith, 11 Met., 330; James vs. Langdon, 7 B. Monroe, 193; Wardell vs. Hughes, 3 Wend., 419; Gaines vs. Buford, 1 Dana, 502; Gillespie vs. Gillespie, 2 Bibb, 89. To show how decisive is a misdirection of the Court on a motion for new trial, as compared with other causes, see Graham on New Trials, page 265, and cases cited; 3 J. R., 180; Holliday vs. Atkinson, 11 Eng. Com. Law, 287. As to the affidavit: cases in which new trial has been granted to plaintiff, on ground of surprise: Peterson vs. Barry, 4 Binney, 481; Weak vs. Callaway, 7 Price, 677, quoted Graham on New Trials, 183; Edie vs. East Ind. Co., 1 W. Black., 295; Niles vs. Brackett, 15 Mass., 359, marginal paging. Further as to surprise: McFarland vs. Clark, 9 Dana, 134; Cutler vs. Rice, 14 Pick., 494; Millan vs. Field, 3 A. K. Marsh., 110. The new evidence disclosed in the affidavit is not cumulative. Cumulative evidence is evidence of the same kind, to the same point; and an admission of a party is not cumulative. Parker vs. Hardy, 24 Pick., 248; Schlencker vs. Risley, 3 Scam., 487.
    R. S. Blackwell, for defendant in error:
    1. There was a complete and perfect sale and delivery of the raft to Denman. Wing vs. Clark, 24 Maine R., 366; Lansing vs. Turner, 2 John. R., 13; Smith vs. Nevill, Walker’s R., 370. Whether the sale was complete or not, is a question of fact for the jury. De Rudder vs. McKnight, 13 John. R., 293; Byer vs. Elvine, 2 Gil., 162; 9 Pick., 209-10; Hondlette vs. Tallman, 14 Maine R., 400; Blenkensop vs. Clayton, 2 Eng. C. L. R., 230-1; Phillips vs. Bristolli, 9 Eng. C. L. R., 162; Chaplin vs. Rogers, 1 East R., 192; Caldwell vs. Smith, 3 and 4 Dev. & Bat., 64. If the sale was actually completed, Johnson, being a special agent, had no authority to rescind the sale. Story Agency, sec. 96; Bradford vs. Bush, 10 Ala. R., 389; Peters vs. Ballistier, 3 Pick. R., 503; Thorndike vs. Godfrey, 3 Green. R., 429; Rossiter vs. Rossiter, 8 Wend. Rep., 494. Whether Johnson did exceed his authority, in recindingthe sale, was also a question of fact, proper to be left to the jury. McMorris vs. Simpson, 21 Wend. R., 610; Mechanics’ Bank vs. Bank of Columbia, 4 U. S. Cond. R., 671. The acts of Bloomer do not amount to a ratification of the contract, because he did not possess a full knowledge of all of the facts of the case. Owings vs. Hull, 9 Peters, 628-9; Thorndike vs. Godfrey, 3 Greenl. R., 429. The circumstances negative the idea of a ratification and promise. Peters us. Ballistier, 3 Pick., 504-5. And if Bloomer made one, it is nudum pactum. Fenn vs. Harrison, 3 T. R., 754; May vs. Coffin, 4 Mass., 341. 2. Whether Johnson was the agent of Bloomer or Clinton, was a fact for the jury to determine. The declarations of Johnson were not competent evidence to establish the fact that he was the agent of Bloomer. 2 Stark. Ev., 34-5; 1 Greenl. Ev., 137, sec. 113; Story on Agency, sec. 135; 2 Greenl. Ev., 46, sec. 59-60. 3. If Clinton was the owner of the raft, and Johnson was his agent in the sale and rescission of the contract, this action cannot be maintained against Bloomer, because there is no privity between him and Denman. England vs. Clark, 4 Scammon, 486, 489, 493; Williams vs. Everett, 14 East, 598; Tiernan vs. Jackson, 5 Peters, 599, 603. The Court will not disturb the verdict of a jury, unless it is manifestly and palpably contrary to the evidence in the case. Dawson vs. Robbins, 5 Gilman, 72; Kincaid vs. Turner, 2 Gilm., 618. Nor merely for the reason that upon such evidence they would have found differently. Wendall vs. Stafford, 12 N. H. R., 171. Nor where the credibility of witnesses is to be considered, presumptions to be raised, and inferences to be made, and where the nature of the evidence is such that different persons might reasonably have different impressions of the case. Wendall vs. Stafford, 12 N. H. R., 171. Nor in any case where the Court is satisfied, from an inspection of the whole record, that justice has been done. Peck vs. Land, 2 Kelly R., 16. Nor will a new trial be granted because the Court below misdirected the jury, on a question of law, if this Court can see from the whole record, that the verdict is right. Greenup vs. Stoker, 3 Gilm., 202; Leigh vs. Hodges, 3 Scam., 15; Gelett vs. Sweat, 3 Gilm., 644; Seare vs. Prentice, 8 East, 348; Edmonson vs. Muchell, 2 T. R., 4; Estwick vs. Carlland, 5 T. R., 426; Fleming vs. Gilbert, 3 Johnson, 528; Harris vs. Doe, 4 Blackford, 370. Nor can a plaintiff claim a new trial, because he was surprised by the evidence of the defendant. Cummings vs. Walden, 4 Blackf., 307; Jackson vs. Roe, 9 John., 77; Ford vs. Tilly, 2 Salk., 653; Price vs. Brown, 1 Strange, 691; Alexander vs. Byron, 2 John. Ca., 318; Knox vs. Work, 5 Binn., 582, and note; Marriott vs. Hampton, 7 T. R., 142. The affidavit is not set out in the record, and this Court cannot, therefore, take notice of it. Petty vs. Scott, 5 Gilm., 209.
    Browning & Bushnell, on same side:
    I. There was in this case a complete and perfect sale and delivery of the raft to Denman, sufficient to vest the title in him. 1. Where there has been a delivery of the goods, actual or virtual, and no further act remains to be done by the vendor, the title of the property passes to the vendee; even where some act remains to be done by the vendor, and the transaction shows the parties understood the sale to be complete, and where the delivery is in the only convenient mode, the title passes. Hinde vs. Whitehouse, 7 East, 558, 571; Jewell vs. Warren, 12 Mass., 309; Boynton vs. Vesey, 24 Maine, 286; Macomber vs. Parker, 13 Pick., 175; Sudwig vs. Fuller, 17 Maine, 162; Hollingsworth vs. Bales, 2 Black., 340; Jennings vs. Webster, 7 Cow., 256; 14 Wend., 664-5—7. It is only where some act remains to be done by the vendor, without which the vendee has no right to take possession of the goods, and until which is done they remain in the power and control of the vendor, that the question as to whether an act is to be done is material. The act must be one which is to be done by the vendor, and in the nature of a condition precedent. Davis vs. Hill, 3 N. Hamp., 382; Hanson vs. Meyer, 6 East, 615, and note; The People vs. Haynes, 14 Wend., 564-5, 567; Outwater vs. Dodge, 7 Cow., 85. 2. Where there is an actual delivery of property, the sale is complete, though, by the understanding of the parties, something is still to be done. The doctrine, that some act to be done prevents the completion of the sale, applies only to cases of symbolical delivery, not to cases where there is an actual delivery. The delivery is to be made according to the nature of the property. Sumner vs. Hamlet, 12 Pick., 76, 82; Macomber vs. Parker, 13 Pick., 175; Boynton vs. Vesey, 24 Maine, 286; Jackson vs. Warren, 12 Mass. 309. The real question is not as to whether some act is to be done, but whether, under the actual arrangement, the vendee has the right to possession, before it is done. If so, the delivery is complete. Sudwig vs. Puller, 17 Maine, 162; Boynton vs. Vesey, 24 Maine, 286. Thus the delivery of a part is a delivery of the whole, and the title to the balance is passed, though it yet remains to be separated from the mass. Damon us. Osborn, 1 Pick., 476, 481; Parks vs. Hall, 2 Pick., 206; Sheby us. Hawyard, 2 H. Black., 504, 509.. 3. Indeed, as between the vendor and vendee, at common law, no delivery, actual or symbolical, is necessary. The completion of the bargain is, at common law, all that is required to pass the title. Delivery becomes necessary as to third parties under the statute of frauds. 2 Black. Com., 488; Willis vs. Willis, 6 Dana, 48; Shumway vs. Rutter, 7 Pick., 56; same case, 8 Pick., 443; Haskell vs. Greely, 3 Greenl., 425; McCoy vs. Moss, 5 Porter, 88; The State vs. Fuller, 5 Iredell, 26; Parsons vs. Dickinson, 11 Pick., 352; Hosban vs. Brawell, 16 Ohio, 509; Rucker vs. Cross, 5 N. Hamp., 570; Champion vs. Searl, 3 Pick., 38, 42. Where the terms of the sale are agreed on and the bargain struck, every thing the seller has to do with the goods, before the vendee has the right to take the possession of them, is complete, the contract of sale becomes absolute, and the property of the goods is in the buyer, and if destroyed by fire or other accident he must suffer the loss. Wing vs. Clark, 24 Maine, 366; Lansing vs. Turner, 2 John., 13; 2 Sup. U. S. Dig., 715, sec. 113; Smith vs. Nevill, Walker Rep., 113. In this case there was nothing to be done in part, the sale was a unit; the measuring, so far as the bill of exceptions show, might and was only for the satisfaction of Denman. 6 East, 626; 4 Bos. & Pul., 69. 4. Whether there has been a completion of the sale by delivery, is often a question as to the understanding and intention of the parties at the time; it depends on circumstances, the nature and situation of the property, the agreement and understanding of the parties. Whether the sale has been completed is a question of fact for the jury. De Rudder vs. McKnight, 13 John., 293; Byer vs. Elmire, 2 Gil., 151, 162; 19 Pick., 209-10; Mason vs. Leshbarrow, 1 H. Black, 351, 363—4; Phillips vs. Bristolli, 9 Eng. Com. Law, 162; Lansing vs. Turner, 2 John., 13, 17 ; Hondlette vs. Tallman, 14 Maine R., 400; Caldwell vs. Smith, 3 and 4 Dev. and Batt., 64; Chaplin vs. Rogers, 1 East, 192; Blenkinsop vs. Clayton, Eng. Com. Law Rep., 230. 5. There was no privity of contract between Bloomer and Denman. The action for money had and received is based on privity. The surplus fund was received on Bloomer’s own account, as of Clinton. Campbell vs. Trumbull, 3 Gil., 502; Tiernan vs. Jackson, 5 Pet., 580, 594, 598, 599, 600; England vs. Clark, 4 Scammon, 486, 489, 493; 14 East, 582; Chitt. Cont., 480, 484, a.

    II. Johnson was the special agent of Clinton for some purposes, and the agent of Bloomer for others. The most that could be said from any view of the evidence, is that he was the special agent of Bloomer to sell Bloomer’s raft, as assumed in one of defendant’s instructions. Having as special agent made the sale and received a part of the purchase money, he could not cancel the sale, or rather, as it in fact would be, re-purchase the property. The power to sell the raft for Bloomer would give him no power to buy lumber, and bind him for the purchase money. The distinction between a general and special agent is well settled. 1. A person authorized to do a particular act, or purchase or sell a particular parcel, is a special agent. A person employed to do all acts, or purchase or sell all goods required in a particular business or employment, is a general agent. Story on Agency, secs. 17, 18, 19, and notes to pages 122 and 131; Rossiter vs. Rossiter, 8 Wend., 494; Peters vs. Ballistier, 3 Pick., 495; Jacques vs. Todd, 3 Wend., 91; Fenn vs. Harrison, 3 T. R., 754 ; Beals vs. Allen, 18 John., 363. Johnson could be the special agent of Clinton for one purpose, whatever might be his relations to Bloomer for other purposes. 12 Pick., 82. 2. A special agent can bind his principal only to the extent of his special authority, and his powers will be strictly construed. The acts of agents do not derive their validity from purporting to be done within the scope of their powers. They must be so done in fact. The person dealing with him must know the extent of his authority. Story’s Eq. secs. 80, 92, 96, 98, 99, 114, 121, 125, 131, and note 133; 14 Eng. Com. Law, 43-4; Mechanics’ Bank vs. Bank of Columbia, 4 Cond., 671. The extent of authority of an agent is a question for the jury. 21 Wend., 610; 1 Pet., 289—90. 3. Even a general agent will be confined to the employment in which he is engaged, however broad and comprehensive the terms in which his general power is given. These cases show the strictness of construction applied to the powers of agents, whether general or special. Story’s Ag., secs. 21, 22, 62, 69; Rossiter us. Rossiter, 8 Wend., 494; Atwood vs. Munnings, 14 Eng. Com. Law, 45; Kilgour us. Finlyson, 1 H. Black., 155; Nixon us. Hyserott, 5 John., 58; Potter us. Dennison, 5 Gilm., 590,598, 599. As to the livery stable case in 3 T. R., 761, see Story’s Agency, p., 122, and note; Pickering vs. Bush, 15 East, 45. 4. A power to a special agent to sell cannot make representations about the property to bind his principal. He can sell, and do nothing else. Gibson vs. Colt, 7 John., 390; Nixon us. Hyserott, 5 John., 58. Nor can he bind his principal by a note, payable in the property he is authorized to sell. Dunnyson vs. Tyson, 17 Vermont, 549, 554; Smith vs. Gibson, 6 Blackf., 369. 5. Having made a sale, he cannot afterwards cancel it, and take back the property, unless in pursuance of some usage of trade to that effect. Story on Ag., secs. 86, 87, 88, 89; Bradford vs. Bush, 10 Alabama, 386; Thorndike vs. Godfrey, 3 Greenl., 429, 431. Nor is there any reason why he should have the power to' recall or re-purchase the property after sale. The only one which could be urged, would be thereby to secure his’ principal against loss, from the insolvency of the vendee. But a special agent, to sell, can sell only for cash, and the insolvency of the vendee cannot, therefore, affect the principal. Story Ag., secs. 77, 78; Delafield vs. Illinois, 2 Hill, 159; Falls vs. Gaither, 9 Porter, 605. 6. A promise of the principal to pay money, on a transaction wherein the agent had no authority to bind him, is a nudum pactum. In this case, it is clear Bloomer never intended to make a binding promise; for he all the time refused to pay or to accept the bill. Fenn vs. Harrison, 8 T. R., 754; May vs. Coffin, 4 Mass., 341; Tower vs. Durrell, 9 Mass., 332. And any promise to bind the principal in such case, or in any case where the agent had acted without authority, should be clearly shown to have been made with a full knowledge of the facts, and the promise must be full and unequivocal. Story’s Ag., sec. 244, and note 245, 246; Thornton vs. Wynn, 6 Cond. R., 508, 512; Trimble vs. Thorne, 16 John., 151, 153; Garland vs. Salem Bank, 9 Mass., 408; Miller vs. Hackley, 5 John., 375, 384-5; Bell vs. Cunningham, 3 Peters, 69, 80, 81; Owings vs. Hull, 9 Peters, 607, 629; Blevins vs. Pope, 7 Alabama, 371; Thorndike vs. Godfrey, 3 Greenl., 429, 432; Smith vs. Gibson, 6 Black., 367.
    III. No cause for a new trial. The evidence to sustain the verdict of the jury is abundant. 1. It is only in cases where the verdict strikes the mind, at the first blush, as manifestly and palpably contrary to the evidence, that the Supreme Court will, for that reason, interfere to set it aside. Dawson vs. Robbins, 5 Gilm., 72; Kincaid vs. Turner, 2 Gilm., 618. Nor will the Court set aside the verdict because, on an examination of the evidence, the Court might have arrived at a different conclusion. Wendall vs. Stafford, 12 N. Hamp., 171. Nor where the credibility of witnesses is to be considered, presumptions to be raised, or inferences to be madé; or where, from the character or nature of the evidence, different persons might come to different Conclusions. Wendall vs. Stafford, 12 N. Hamp., 171; Rowley vs. Kinney, 14 John., 186. Nor where justice has been done, even though the verdict is against evidence. Peck vs. Land, 2 Kelly R., 16. 2. Nor will the Court grant a new trial, because the Court below misdirected the jury, if the Supreme Court can see from the whole record that justice has been done. Greenup vs. Stokes, 3 Gilm., 202; Leigh vs. Hodges, 3 Scam., 15; Goodell vs. Sweat, 1 Gilman, 475; Seare vs. Prentice, 8 East, 348; Pate vs. The People, 3 Gilm., 644; Edmonson vs. Muchell, 2 T. R., 4; Eastwick vs. Calland, 5 T. R., 426; Fleming vs. Gilbert, 3 John., 528. 3. Nor is there any ground shown in the record for a new trial, on the ground of surprise. Neither the reasons for a new trial, nor the affidavit, are contained in the bill of exceptions; nor does the bill of exceptions purport to contain them. They are no part of the record. They should have been specifically referred to and Identified by the bill. Vanlandingham vs. Fellows, 1 Scam., 233; Fry vs. Riley, 3 Scam., 259; Saunders vs. McCollins, 4 Scam., 420; Corey vs. Russell, 3 Gilm., 366; Wyman vs. Wood, 25 Maine, 436; Wadlington vs. Gary, 7 Smedes & Marsh., 522; Edwards vs. Patterson, 5 Gilm., 126; Holmes vs. The People, 5 Gilm., 479. 4. A plaintiff can in no case claim a new trial, on the ground that he was surprised by defendant’s testimony, and had not come prepared to meet it. He may suffer a non-suit and recommence, but shall not lie by and speculate on the verdict. He may be surprised when the evidence is given, but he is not surprised when he, of his own accord, submits his case to the jury on the evidence, after he knows what it is, and when his position as plaintiff permits him to retreat. It is otherwise with the defendant, perhaps: he cannot retreat. Cummings vs. Walden, 4 Blackf., 308; Cook vs. Berry, 1 Wilson, 98; Jackson vs. Roe, 9 John., 77; Price vs. Brown, 1 Strange, 691; Knox vs. Work, 2 Binn., 582, and note; Alexander vs. Byron, 2 John. Ca., 318; Marriott vs. Hampton, 7 T. R., 142. 5. Nor will a new trial be granted on the ground of newly discovered evidence, where the evidence was known before the trial, or by reasonable diligence might have been produced; or where the object of the new evidence is to impeach a witness. This was all known to Denman before the trial; and as he was dealing with an agent, he was bound to come prepared to prove that defendant was the responsible principal, and not rely on its being admitted or proved by defendant on the trial. Coe vs. Givens, 1 Black., 367 ; Williams vs. Baldwin, 18 John., 489; 15 John., 213; 5 John., 248; 3 John., 256; 1 Scam., 491; 1 J. J. Marsh., 590; Wheelwright vs. Beers, 2 Hall, 391, 402; 3 Scammon, 486. Nor to admit evidence of the admissions of the opposite party. The cases of the party moving for a new trial on this ground, are persons acting in a fiduciary or representative capacity. Gugot vs. Butts, 4 Wend., 479. The affidavits of the proposed new witnesses should, at least, have been produced, to show they were ready to give the proposed testimony. 4 Blackf. Rep., 98; 1 Hall, 382.
    As Mr. Bushnell was proceeding to answer the arguments urged for a new trial, for the reason that plaintiff was surprised by the testimony of Johnson, he was stopped by the Court, with the suggestion that the plaintiff should have taken a non-suit in the Court below, if he did not wish to go to the jury upon the evidence presented. He ought not to be allowed to take his chance for a verdict and then complain that he has been surprised.
   Opinion by Mr. Justice Catón :

The fifth and eighth instructions given for the defendant, were erroneous. The eighth instruction supposes that Bloomer was the owner of the raft, and that Johnson was his agent to sell it, and receive the purchase money. The jury were then instructed, that if Johnson had sold and delivered the raft to Denman, and received a part of the purchase money, he had no authority to rescind the sale, and make Bloomer liable for the money thus received.

An agent appointed for a special purpose—to transact a particular business, cannot go beyond the scope of such appointment, and bind his principal; nor can he act after such employment ceases, hy his having completed and closed up the business, to transact which he was constituted an agent; but within the scope of such employment, and until the power conferred is thus exhausted, or has been revoked, the agent can bind the principal, to the same extent that the latter could have bound himself. In this case, Johnson’s powers had not terminated by his having completed the business confided to him. He had sold the raft, it is true, but he had received only a part of the purchase money, while his employment required him to collect the whole. To deny the authority of the agent to take back the raft, while the transaction was thus incomplete, would often prove most detrimental to the principal. Suppose the agent had discovered that Denman was insolvent, and that, in all probability, the balance of the purchase money would be lost, authority to rescind the sale, and take back the raft, would have been indispensable to enable him to protect the interest of the principal.

This is not so strong a case as that of Anderson vs. Coonley, 21 Wend., 279. There the agent was authorized to contract for barley, and it was held, that he might rescind a contract which he had made, so long as his authority to make other purchases still continued. The case of Bradford vs. Bush, 10 Alabama, does not conflict with the principles above laid down, or with the case referred to. There the agent was authorized to sell some horses, which he disposed of to the defendant, and received other property, and a note, in payment. It was held that the agent could not, at a subsequent time, bind his principal, by a new agreement, to make good a defect in some of the horses. Clearly, in this case, the powers of the agent were exhausted, and his authority terminated. The case before us, however, was very different. The agent had but partially completed the transaction, when he thought proper to rescind what had been done; and in doing this, we think he acted within the scope of the authority, which the instruction supposes was conferred upon him, and perhaps for the best interests of his principal.

The fifth instruction, also, should have been refused. All that is assumed in that instruction might have been true, and the plaintiff still entitled-to recover. It will be sufficient to give one assumed state of the case, to show this. Bloomer might have ratified all that Johnson is supposed to have done in his name; in which event, the defendant’s liability would have been the same as if the agent had acted strictly in pursuance of his original appointment. This same objection may be urged to the eighth instruction. It is not sufficient that the necessary qualification may be found in the instructions given for the plaintiff; unless we can say, with entire confidence, that the jury could not have been misled by the erroneous instruction. After looking through all the instructions given for both parties, we are by no means prepared to say, that the jury must, necessarily, have understood the law of the case properly. Each party should see that his own instructions are proper in themselves.

The impropriety of giving instructions like those given in the present case, subject on one part to the modifications of the instructions given on the other, is thus spoken of in Gregory’s heirs vs. Ford, 5 B. Monroe’s Reps., pa. 473: “ The instructions asked for by the plaintiff are said, in the bill of exceptions, to have been given with the qualifications contained in the instructions given on the part of the defendants; ’ as the instructions' given for the defendants are numerous and complicated, this general reference to them, as qualifying instructions, apparently given for the plaintiff, without designating the particulars in which they are intended to be qualified, or pointing out the particular instructions which conflict with each other, is objectionable, as wanting that certainty which is requisite to enable the jury correctly to apply the law to the facts before them.”

The judgment below is reversed, with costs, and the cause remanded.

Judgment reversed.


source: Caselaw Access Project

author: Opinion by Mr. Justice Trumbull:

license: Public Domain

text:
    Thomas Morgan, appellant, vs. William Smith, Samuel Montgomery, and Henry R. Hollister, appellees.

      Appeal from Scott.

    A covenant by the obligor, in a bond to convey land, by executing and delivering to tbe ob-6 ligee “ a good and sufficient general warranty deed," is not satisfied, without the conveyance of a perfect title, free of all incumbrances. n The grant of an easement authorizing the grantee to dam up, and use the water of a braneh running over the land of the grantor; and, also, to use the water of a spring upon it, is an incumbrance.
    A covenant to convey land, free of all incumbrance, is not complied with by the tender of a deed to the covenantee, with the reservation of an easement, previously granted, by the covenanter to a stranger.
    The existence of such an easement being a breach of the covenant against incumbrances, may, in an action by the covenanter against the covenantee, upon a note given for a part of the purchase money, he set up by way of defence, as a failure of consideration, to the extent of the injury occasioned by the incumbrance; or tbe covenantee, in order to have the rights of all the parties fully and finally settled, may resort to a Court of Equity, for the purpose of compelling the covenanter to surrender up the note, and execute a deed upon such terms as should he found to be just and equitable.
    It is a well settled principle, that the allegations and proofs must correspond, and that a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made by the bill.
    But a complainant is not bound to set forth his adversary's rights, with the same particularity as his own. "Where the extent and character of those rights is more peculiarly within the knowledge of the adverse party, it is sufficient for the complainant to allege generally, that the adverse party has, or claims to have, some rights relative to the subject matter of the controversy, leaving the opposite party to disclose in his answer the nature and extent of them.
    It is no defence to a bill alleging a breach of a covenant against incumbrances, that the covenantee knew of the existence of the incumbrance, at the time of the making of the covenant.

      A defendant is not permitted to file a cross bill, where his rights are fully disclosed in his answer, in response to the allegations of the bill, and may be fully protected by the Court, upon the hearing of the original bill.
    Where one of several parties, defendant to a bill in chancery, has no interest in the subject matter in litigation, it is not error in the Circuit Court to dismiss the bill as to the other parties.
    Bill in chancery, to enjoin a suit at law, to compel a specific performance, &c., filed in the Scott county Circuit Court, by the appellant against the appellees, and heard before Woodson, Judge. The bill stated, in substance, that complainant, about the 6th of November, 1845, purchased of William Smith the following lands, to wit: the north-east quarter of the north-east quarter of section number'twenty-nine, township fourteen north, range twelve west, containing thirty-nine acres; and, also, a part of the north-west quarter of the north-east quarter of the same section, containing thirty-one acres—there being in both parcels seventy acres of land ; upon which were a frame dwelling house, and other valuable improvements; the two tracts of land making one entire farm and piece of property. That Morgan paid and agreed to pay Smith for this property, the sum of one thousand dollars : five hundred dollars were paid in hand, at the time of purchase, and Morgan gave his note for the balance, payable on the first day of March following ; upon which Smith executed to Morgan a bond or contract, under seal, by which he bound himself to make and deliver to Morgan, or his assigns, a good general warranty deed for said land, and to deliver possession of the land' on the 1st of March, 1846, upon payment of the note for five hundred dollars. These were to be done simultaneously. That long before this note became due, Morgan paid Smith three hundred dollars on account of it, and offered in due time to pay the remaining two hundred dollars, and demanded of Smith a conveyance of the land, pursuant to the contract; which Smith refused to make, but offered a deed, with various reservations and conditions, not authorized by the contract of sale. Morgan avers that since he made the purchase from Smith, he has learned that Samuel Montgomery and Henry R. Hollister, the other respondents, have set up some claim to a portion of or to some right upon said land. Admits that Morgan knew, when he purchased the land, that Montgomery and Hollister, or some other person, had upon one corner of one of said tracts of land, a tan yard, &c.; but who were then or are now the owners of the same, he does not know. Admits that, about or after the time of sale from Smith to Morgan, Smith told Morgan, that he, Smith, had conveyed away three quarters of an acre of land, off one corner of said tract, to include said tan yard ; but that, without these three quarters Of an acre, Smith averred there were more than seventy acres of land in the two tracts. That Morgan purchased the land without notice that there were any other rights conveyed or sold to attach to said tan yard; and that Morgan offered to take a deed from Smith, and leave out the three quarters of an acre, and if the two tracts fell short of seventy acres, that Morgan should be allowed an equivalent of fourteen dollars and twenty-three cents per acre, for the diminution in quantity. That before the said first of March, Smith was to have the land surveyed by the county surveyor, to ascertain the exact quantity of land; which had not been done. The bill charges that Smith has wholly failed to comply on his part, and has sued Morgan for the full amount of the five hundred dollar note, without crediting him with the three hundred dollars already paid. That Smith is insolvent, and fraudulently designs to enforce the payment for the land, without complying with his contract on his part. That all the respondents are combining to procure and retain out of said land, rights and privileges that do not belong to them. The bill prayed that the suit at law be enjoined, and that Montgomery and Hollister be compelled to exhibit and show what right they have to said land, or to any part of it, and all privileges connected therewith. That the rights of all the parties in the land be ascertained and quieted. That a survey of the land be ordered, and if Montgomery and Hollister are entitled to any part of said tracts of land, or to any rights and privileges out of or upon the same, that the Court will determine the value of the land, and the rights and privileges of Montgomery and Hollister; and that an abatement in price be made, in proportion to the ascertained value of the injury sustained by the tracts of land in consequence thereof. That Montgomery and Hollister be perpetually enjoined from interfering with or entering upon or exercising any privileges upon said land, except the said three quarters of an acre ; and that Smith be compelled to convey the land, &c.
    Smith answered, admitting the truth of the bond, &c.; that he sold the farm in block, for one thousand dollars, described in the bond as containing “ seventy acres, more or less,” and that the land has been surveyed, and contains a fraction more than sixty-nine acres, and that he has received eight hundred dollars from Morgan, on account of the land. Avers a tender of a deed as required by the bond, which Morgan refused to receive, “ on the evasive pretext of the reservation in the same of a certain privilege to the said Henry R. Hollister, Samuel Montgomery, and one Jesse Eustis; ” and he insists that Morgan had both actual and constructive notice of the sale of this privilege to Hollister and Montgomery, prior to his purchase of the land from Smith. The deed tendered by Smith to Morgan contains this reservation: “ excepting, nevertheless, a certain privilege of damming up and raising the water in a certain branch running across a tract of land, conveyed by the grantor to Henry R. Hollister, Samuel Montgomery and Jesse Eustis, by their deed executed December 31st, A. D. 1844, and recorded in the recorder’s office of Scott county, Illinois; which privilege consists in the right on the part of the last above named grantees, to dam up the water of said branch, on the lands of said grantors, above said land so conveyed to the last named grantees, and to convey and use all the water in the main spring on the land of the said grantors, up said branch, across their land, to the premises by them in said deed conveyed, either by an aqueduct or a ditch, for the use of said grantees, their heirs and assigns, over the premises to them conveyed, for ever.”
    Hollister and Montgomery filed an answer to the bill of Morgan, and a cross bill, setting up their rights, and praying the Court to define those rights, and to protect them against the acts of Morgan, as the subsequent purchaser from Smith. Morgan excepted to the answer of Smith, for insufficiency, and replied to Hollister’s answer, and moved to strike his cross bill from the record.
    The Court dismissed Morgan’s bill and Hollister’s cross bill, and decreed that Morgan should pay Smith two hundred, and thirty-nine dollars and twenty-five cents, as the balance of consideration due for the land.
    The proofs in the case not being necessary to the understanding of the opinion of the Court, are omitted. Morgan instituted this appeal.

      M. McConnel, for appellant:
    Does the grant or clause in the deed to Hollister pass an interest in the land, or is it hut a personal covenant, by which subsequent purchasers from Smith are not bound? 4 Mass. R., 629, 630, Prescott vs. Freeman, determines what is an incumbrance. Morse vs. Aldrich, 10 Pickering, 449, 452-3 and 4; Gale’s Law of Easements, pp. 1, 2, 6, 10, 12, 31, 32. Morgan insists, that if Hollister has the right he claims, then Smith is bound to refund to him the value of the said right, out of the sum agreed to be paid for said farm. Sumpter vs. Welch, 2 Bay’s Rep., 558; Adams vs. Wylie, 1 Nott & McCord’s Rep., 78; Penn vs. Preston, 2 Rawle Rep., 14; Tuno vs. Flood, 1 McCord’s Rep., 121; Prescott vs. Freeman, 4 Mass. Rep., 628, 629, 630. Smith cannot protect himself against a compliance with his bond, because Morgan had either constructive or actual notice of the previous conveyances to Hollister and company. Townsend vs. Weld, 8 Mass. Rep., 146; Warren vs. Powers, 5 Conn. Rep., 381. This authority is clear, that the bond must be complied with. Suydam vs. Jones, 10 Wendell’s Rep., 180; 1 American Chancery Digest, 677, sec. 84; ibid, 682, sec. 183. Smith cannot compel Morgan to accept a warranty deed for this land, until he shows that he has a good right thereto. Evans vs. Kirtland, 4 Paige’s Ch. Rep., 637-8; 1 American Ch. Dig., p. 148, sec. 1; 2 Johnson’s Rep., 591; 10 Johnson’s Rep., 266, 297; 11 Johnson’s Rep., 525; Brown vs. Cannon, 5 Gilman R., 174. The Court erred in rendering a decree against Morgan, in favor of Smith, upon the answer of Smith alone. McConnel vs. Hodson, 2 Gilman, 649 ; Tarlton vs. Vietes, 1 Gilman, 472; Ballance vs. Underhill, 3 Scammon, 460, 461.
    D. A. Smith, for appellee :
    1. A complainant must recover, if at all, on the case made by his bill. He cannot state one case in his bill, and make out a different one in proof. The allegations and proofs must correspond ; the latter must support, and not be inconsistent with the former. Although a good case may appear in the evidence, yet if it be variant from that stated in the bill, the bill will be dismissed. The defendant has the right to answer and contest the case on which the complainant claims relief, and he is not required to explain or controvert what is not there stated, as the foundation of the claim. McKay vs. Bissett et al., 5 Gilman, 499. 2. Morgan has not, with legal sufficiency, described the easement in the land conveyed by Smith to Montgomery and others, in his, Morgan’s, bill, admitting, for the sake of argument, that the easement is an incumbrance on the land covenanted to be conveyed by Smith to Morgan. 16 Johns., 122, 256. If the incumbrance were fully and sufficiently described, and Morgan could claim a deduction from the purchase money, on account of the existence of the incumbrance, he has not so alleged damages in his bill, as that he is entitled to more than mere nominal damages. Sedgwick on the Measure of Damages, 185, 186. 3. The existence of the incumbrance of the easement, is not a breach of the covenants of the deed, contracted to be made by Smith to Morgan, assuring title to the land, by general warranty. The existence of the easement of a public highway, the Supreme Court of New York, in the case 15 Johns., 483, has decided to be no breach of the covenants in a deed, more comprehensive than the covenants of the deed that Smith agreed to make to Morgan.
   Opinion by Mr. Justice Trumbull:

That the deed from Smith to Montgomery and others, created an incumbrance upon the land which he had contracted to convey to the complainant, and put it out of his power to comply with his obligation, there can be no question. By his bond, Smith had obligated himself to execute and deliver to the complainant, “ a good and sufficient general warranty deed,” for the premises in question; that is, he covenanted to convey a perfect title, free of all incumbrances, (Brown vs. Cannon, 5 Gil., 174,) and yet previous to the execution of the bond to complainant, he had conveyed away to Montgomery and others, their heirs and assigns, the right to dam up and use the water of a branch running through the land; and, also, to use the water of a spring situate upon it. This easement, originally granted to Montgomery and others, and which, by subsequent conveyances, as the record shows, became wholly vested in Hollister, created a perpetual incumbrance upon the land, and Morgan had a right to insist, when called upon to pay the purchase money, upon a deduction from the contract price, of a sum equal in amount to the deterioration of the property, occasioned by the easement existing upon it; and he was not bound to accept a deed, reserving the privileges which had become vested in Hollister, nor any other than such a deed as would convey to him a complete title to the premises he had contracted for, free of all incumbrance.' Morgan might, no doubt, have set up the existence of the easement, as a defence to the suit upon the note, and would have been entitled to a credit, equal in amount to the injury occasioned by the incumbrance; but we think, in order to have the rights of the parties fully and finally settled, he might also come into a Court of Equity, where the obligor might be compelled to surrender up the note, and execute a deed upon such terms as should be found to be just and equitable. 'The whole record shows such a case as to entitle the complainant to relief; but then it is insisted, that the allegations of his bill are not such as to warrant its being granted in this suit. It is a well settled principle, that the allegations and proofs must correspond, and that a party will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the ease made by the evidence. That the character of the incumbrance is not as distinctly charged as it might have been, is apparent, but a party is not bound to set forth his adversary’s title or rights, with the same particularly as his own. The extent and character of the privileges of the defendants, Montgomery and Hollister, being more peculiarly within their own knowledge, it was suificient for the complainant to allege generally, that they had, or claimed to have, some claim or privilege upon the land, leaving them to disclose in their answers its nature and extent; which they have done. Cooper Eq. Pl., 6; Story’s Eq. Pl., sec. 255.

The bill alleges, that the complainant “has learned that Samuel Montgomery and Henry R. Hollister have set up some claim to a portion of, or to some right upon said land,” and charges, that the defendants have combined to “ reserve rights and privileges that were never originally reserved in said purchase,” and prays that Montgomery and Hollister be compelled to exhibit and show “ what right they have to said land, or to any part of it, and all privileges connected therewith; ” that the Court determine the rights and privileges that said Montgomery and Hollister are entitled to, out of said land, and that an abatement out of the consideration paid and agreed to be paid for the same be made, equal to the value of the rights reserved. The foregoing allegations and prayer, we think sufficient to entitle the complainant to have his rights and liabilities determined in this suit, notwithstanding both parties seem to have lost sight, in a great measure, of the real points in the case, and to have directed their attention, chiefly, to the question whether the complainant, at the time of his purchase from Smith, had notice of the rights claimed by Montgomery and Hollister—a question, as we conceive, wholly immaterial in this case, as Smith was equally bound by the covenants in his bond, whether the complainant knew of the easement or not. The cross bill filed by Hollister, was wholly unnecessary, and was, therefore, properly dismissed. He had fully set forth and shown his rights in the premises, as a defendant to the original bill, and this was all that he was required to do for the protection of his rights. The original bill was also properly dismissed, as to both Montgomery and Hollister, as no decree could be entered against them, but the Circuit Court erred in dismissing it as to Smith; and as the evidence in reference to the deduction that should be made, in consequence of the easement upon the land, is somewhat uncertain and unsatisfactory, the cause will be remanded, with directions to the Circuit Court, to ascertain how much less the premises contracted for by the complainant are worth, in consequence of the privilege or easement which Hollister has in them; and if the amount is less than what remains due for the land, to deduct it therefrom, and render a decree for the balance in Smith’s favor; and upon the payment of such balance by the complainant, that the note for the balance of the purchase money be cancelled, and Smith decreed to execute and deliver to the complainant a general warranty deed, conveying to him a complete title to the premises described in the bond; excepting therefrom the one and thirty-four hundredth acres occupied as a tan yard, and the easement originally granted to Montgomery and others, and now belonging to Hollister; or, if the deterioration in value of the premises, in consequence of the easement or privilege of Hollister in them, shall be found to exceed the balance due Smith for the land, that said note be cancelled, and Smith decreed forthwith to execute and deliver to the complainant a deed of the character aforesaid, and to pay him such excess. The complainant is not entitled to any deduction from the price he agreed to pay, on account of the quantity of the land, as shown by actual survey, being some one or two acres less than what it was estimated to be at the time of the sale. The condition of the bond shows that he did not purchase by the acre, hut gave so much for the particular lands, describing them, and being the same then occupied and contracted by said Smith as a farm, containing seventy acres, more or less.” The mention of the quantity of acres was, in this instance, but matter of description, and did not amount to any covenant which would be violated, if the quantity of acres should fall short of the given amount. 4 Kent’s Com., 466. Nor can the complainant claim any deduction on account of the tan yard tract having been conveyed to Montgomery and others, as he proffers in his hill to accept a deed excluding it, and it constituted no part of the farm occupied by Smith, at the time of the purchase, but was then, as the bill admits, in the possession of Montgomery and Hollister.

So much of the decree of the Circuit Court as dismisses the cross hill filed by Hollister, and the original bill as to Montgomery and Hollister, is affirmed; and the balance of said decree is reversed, and the cause remanded, at the costs of said Smith.

Decree modified.


author: Opinion by Treat, C. J.:

text:
    The County Commissioners of Pike County, plaintiffs in error, vs. The People of the State of Illinois, on the relation of Benjamin B. Metz, defendants in error.

      Error to Pike.

    The question, as to who shall he the relator in an application for a mandamus, depends on the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced must be the relator.
    The relator is considered as the real party, and .his right to the relief demanded muet clearly appear. A stranger is not permitted officiously to interfere and sue out a mandamus in a matter of private concern.
    Whore the object is the enforcement of a public right, the People are regarded as the real party, and the relator need nob show that he has any legal interest in the result. ^ It is enough that he is interested as a citizen, in having the laws executed, and the right in question enforced.
    By the express provisions of the statute, the successful party in the proceeding for a manda-, mus, recovers costs in all cases.
    The act of February 28th, 1845, authorizing counties to apply such portions of the internal improvement fund received by the counties, under the act of February 27th, 1887, and which had been loaned by them, to “ any and all purposes they may think proper,” does not extendió the county of Pike; a specific appropriation having been made by the Legislature of that fund, by the act of February 9fch, 1889.

      Where a specific fund given to a county by the Legislature, to bo held in trust for certain purposes, is diverted from that puipose and mixed with the general funds of the county, it is not error in the Court to award a mandamus, to compel such fund to be paid over to to the person entitled to it, and to direct an order to be drawn upon the general funds of the county in the treasury.
    This was a proceeding hy mandamus in the Pike county Circuit Court, instituted hy the relator against the county commissioners of that county, to compel the payment to him of the sum of one hundred and twenty-five dollars, and interest, which had been originally appropriated by the Legislature to the county, and by a subsequent law set apart for the improvement of the navigation of McKee’s creek, in said county, to be expended by,, the relator.
    By the fifteenth division of the eighteenth section of the act to establish and maintain a system of internal improvements, in force 27th February, 1837, it was enacted, that “there shall be appropriated the sum of two hundred thousand dollars, of the first moneys that shall be obtained under the provisions of this act, to be drawn by the said counties, in a rateable proportion to the census last made, through which no railroad or canal is provided to be made at the expense or cost of the state of Illinois ; which said money shall be expended in the improvement of roads, constructing of bridges, and other public works.” Under this provision, Pike county received about twenty thousand dollars, which, by an act of the Legislature to provide for certain improvements in that county, in force February 9,1839, was specifically appropriated to certain roads, bridges, &c., by name; stating the amount to be expended on each, dividing the county into districts, and naming a commissioner for each district, to superintend the works within the same. This act appropriated “five hundred dollars to the improvement of the navigation of McKee’s creek, as far up as Chambersburg, and that B. B. Metz be commissioner to superintend said work.” Each of the commissioners, before entering upon the duties assigned them, was to enter into bond, with sureties, in such sum as the County Court should direct, conditioned for the honest and faithful discharge of his duties, &c., and for the proper application of all moneys which should come to his hands, under the provisions of this act: the bond to be approved and filed with the clerk of the County Court. The money was to remain in bank, to the credit of Pike county, to be drawn upon the order of the county commissioners. The county commissioners were to draw one-foprth part of the money appropriated, and apportion the arhount among the said commissioners of each district, and when he should have expended that amount, and certified under oath to its faithful application, the county commissioners were to continue to draw the residue, in fourth parts, until the whole should be expended. Vacancies occurring in the commissioners for the districts, were to be filled by the County Court, and the commissioners were to receive two dollars and fifty cents as a compensation for each day they should be actually employed.
    On the twenty-eighth day of February, 1845, the Legislature passed the following act:
    “ Section 1. That the acts of the County Commissioners’ Courts of the several counties of this state, in loaning at interest that portion of the internal improvement fund, which fell due said counties under the act of February twenty-seventh, one thousand eight hundred and thirty-seven, establishing a general system of internal improvements, be, and the same is hereby, legalized.

      “ Sec. 2. That said County Commissioners’ Courts are also empowered to collect the money so loaned, as is provided for by law for the collection of other indebtedness.

      “ Sec. 3. That it shall be the duty of said County Commissioners’ Courts, and they are hereby required, to cause to be renewed, all bonds given as evidence of indebtedness to said fund, with good and sufficient security.
    “ Sec. 4. That upon the debtor’s compliance with the third section of this act, no higher interest shall be collected from said debtor, from and after the renewal of any such bond, than six per cent, per annum; Provided, that this provision shall not extend to any portion of said funds which have, by law, been constituted a portion of the common school fund of any county in this state.

      “ Sec. 5. That the county commissioners of the several counties of this state, may apply all such money, when collected, to any and all purposes they may think proper. This act to be in force from and after its passage.”
    In his application for the mandamus, the relator sets forth his appointment under, and compliance with the requisitions of the second of the foregoing laws; and that the county commissioners of said Pike county have, from time to time, paid over to him three instalments of the five hundred dollars, appropriated to the improvement of said creek, for which he has faithfully accounted ; and that he is informed and believes that the county commissioners, shortly after the passage of the said law of 1839, drew the amount appropriated to McKee’s creek from the bank, and that the unexpended fourth instalment has been loaned by them, with his assent, for the last four or five years, at interest. That the expenditure of the residue of the appropriation is necessary, &c.; that he has frequently applied to the County Court for it, and that it has been refused him; the Court alleging as a reason for the refusal, that the foregoing act of 1845, had given them discretionary power over the fund, and that they should appropriate it to other objects. Upon this statement, an alternative mandamus was awarded. To this writ, after service upon them, the county commissioners answered, admitting the appropriation, and the specific direction of its use, as set forth in the law of 1839, but insist that this was subject to subsequent and other dispositions of the fund by the Legislature, and to be diverted from the special objects stated in the law of 1839, in like manner as the fund due to other counties. They set up the act of 1845, as placing the fund at their disposal; and claim, that, by the fifth section of that act, unless with their consent, the fund was no longer subject to the special objects of improvement enumerated in the law of 1839. That they do not think proper to make any further appropriation of the fund to the improvement of McKee’s creek, and design to appropriate it otherwise, to more useful improvements, and prayed the opinion of the Court, believing that the fund sought by the relator to be obtained from them, is the same money placed by the provisions of the law of 1845 under their control, and that the relator, not having any claim thereto, that they, the respondents, should be discharged. Upon this answer the rule was made absolute, and, on motion of the relator, a peremptory mandamus was awarded,, commanding the payment of the said sum of one hundred and twenty-five dollars, with the interest accumulated thereon, by an order on the county treasurer, since the money originally came under the control of the comniissioners, and all costs. These proceedings were heard before Purple, Judge.

      The respondents sue out this writ of error, and seek a reversal of the order and judgment, upon the peremptory mandamus, and assign for error, the awarding of the peremptory mandamus, and the judgment for costs.
    R. S. Blackwell, for plaintiffs in error:
    1. Metz has no legal interest in the fund he seeks to reach in this case by mandamus, and cannot therefore be permitted to prosecute this suit. Putnam vs. Valentine, 5 Ohio R., 117; Sanger vs. Co. Com’rs of Kennebec, 25 Maine R., 291; Smith vs. Heuston, 6 and 7. Ohio Cond. R., 52; Harper vs. Ragan, 2 Blackf. R., 89. 2. If he has such interest in the fund, assumpsit for money had and received will lie. The rule is, that a mandamus will not lie where there is any other specific legal remedy. People vs. Bradwell, 2 Cow. R., 444; 1 Wend. R., 318 ; 10 John. R., 484. 3. The return shows that the money is loaned out. It is, therefore, not subject to the order of the relator. If the county commissioners are required to draw an order on the particular fund, it would be unavailing. A general order to pay out of any funds in the treasury, cannotbe required or given under the law. State vs. Township 4, 1 and 4 Ohio R., 268; Universalist Church vs. Columbia Township, 6 and 7 Ohio R., 192. 4. The appropriation of the fund in controversy, was a mere gratuity by the state, which did not become perfect until an actual delivery of the money to the commissioner appointed to expend it. 2 Kent Com., 438. Therefore, no action can lie for the money thus appropriated, though withheld by the county. Pearson vs. Pearson, 7 John. R., 26; Fink vs. Cox, 18 John. R., 145. Again, the Legislature revoked the gift before delivery, which every donor has the right to do. R. S., 605, sec. 5; 2 Kent, 439. 5. The County Court have a discretion as to the application of the fund, and the rule is, that where an inferior tribunal has a discretion, it cannot be coerced by mandamus.
    M. Hat, for the relator and defendant in error:
    1. That the relator, Metz, was not the party plaintiff in this proceeding. The People are the real party, both nominally and really, in theory and in fact. The object of this proceeding is to enforce a public statute, upon the suggestion that the officers appointed to carry it out had refused to do their duty. In such a case, the wrongful refusal of the officers to act, is no more the concern of one citizen than another. All are alike interested, and any person may become relator. The People cannot act except through individual information; either by the Attorney General, or some private person. In matters of public right, founded on a public statute, it is unnecessary for the relator to to show any interest in the matter distinct from that of other citizens. As the relator in this case was more conversant with the facts than any other person, it was peculiarly proper that he should become relator. People vs. Collins, 19 Wend., 64. 2. The People have no other adequate remedy in this case. Neither an action of assumpsit nor an appeal could be prosecuted. 8. The return to the alternative mandamus, shows the money to be in the county treasury: if so, the order is in the proper form ; no other could be made. The original fund had been converted into money, and was in the county treasury. 4. The duty to be performed by the county commissioners in this case, was entirely ministerial, involving no discretion whatever. Sections 8 and 9 of the act of 1838-9, appropriating the fund. 5. If there was any discretion to be exercised, having refused to exercise that discretion, mandamus was the proper remedy. Officers appointed to the performance of a duty, involving the exercise of a discretion, will be compelled to exercise that discretion, although the Court will not direct how they are to use it. 5 Halsted, 57; 3 Binn., 273. 6. The proper construction of the acts of the Legislature of 1836-7, establishing a general system of internal improvements, the act of 1838-9, appropriating the fund in Pike county, and the act of 1845, “in relation to certain counties therein named,” shows the relator to be entitled to this money as commissioner under the law of 1838-9 • in other words, that the act specifically appropriating the money in Pike county, was not repealed by the act of 1845, “in relation to certain counties.”
   Opinion by Treat, C. J.:

It is contended that the relator has not such an interest in the fund sought to be recovered, as will authorize him to prosecute this peculiar remedy. The question, who shall be the relator, in an application for a mandamus, depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced, must become the relator. He is considered as the real party, and his right to the relief demanded must clearly appear. A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the People are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced. See the case of The People vs. Collins, 19 Wendell, 56, where this question is much discussed, and the foregoing conclusions are clearly stated. No doubt is entertained of the right of Metz to become the relator, and pursue this remedy. The object of the suit is not a matter of individual interest, but of public concern. Any citizen of the county, especially of the locality interested in having the improvement prosecuted, could become the relator, and obtain the mandamus. There is a manifest propriety in permitting Metz to give the information, and conduct the proceeding. He has the direction of the improvement, and the money, when received, is to pass into his hands, and be disbursed by him.

It is insisted that the act of the 28th of February, 1845, repealed the act of the 9th of February, 1839, and vested the county commissioners with full discretion over the fund in controversy ; and this presents the main question in the case. The act of the 27th of February, 1837, gave the fund to the county, to be expended in the construction of such public works, within its limits, as the county commissioners, in their discretion, might direct. Before this discretion was exercised, and before the money was received from the state, the Legislature, by the act of the 9th of February, 1839, withdrew the fund from the discretion and control of the county commissioners, and required it to be expended in the construction of certain designated improvements, and under the direction of certain persons named in the act. The money was required to remain in the bank, to the credit of the county, but was only to be drawn out by the county commissioners, from time to time, as it should be needed for the prosecution of the improvements, and paid over to the persons having the superintendence thereof. The fund was appropriated to certain specified purposes, over which the county commissioners were to have no other control than to receive the money, and pay it out in the manner prescribed by the act; and in doing that, they were to act merely as the trustees of the state, and of those beneficially interested in the proper expenditure of the money. The improvements were to be constructed under the authority of the state, and not in pursuance of any directions of the county commissioners. From the passage of the act, the fund ceased to be the property of the county, and subject to the control of the county commissioners. It was recalled by the state, and another and different disposition made of it. It became another fund, devoted to specific objects, and to be expended under different authority, and by different agents. In the opinion of the Court, the act of 1845 was not intended to repeal, or in any manner affect the act of 1839; but was only designed to apply to counties that had actually received their portion of the fund falling due them, under the provisions of the internal improvement act; and which, instead of expending it as directed by that act, had loaned it out on interest; or, in other words, the act only embraced cases where the fund still belonged to the county, and was subject to its disposition and control. ■The act legalized the acts of the county commissioners, in such cases, in loaning the money, instead of applying it as originally designed; and empowered them to call it in, under certain restrictions, and then to make such application of it as they, in their judgment, might deem best for the interests of the county. It was confined in its operation to moneys that had gone into the possession of a county, in pursuance of the internal improvement law; and did not extend to moneys that might pass into the hands of the county commissioners, as mere trustees, for the purpose of being paid over to the agents of the state. This was the entire scope and design of the act. Its object was two-fold; first, to legalize the loaning of the fund which a county had obtained from the state; and, second, to vest the county commissioners with a larger discretion over it when collected. In the case of Pike county, there was nothing on which the act could operate. It never, in point of fact, received the fund that fell due it by the act of 1837. Before the money was obtcined, the power to receive it was recalled, and the fund was diverted by the state. There was no such fund belonging to the county; no portion of which could have been loaned. There were no loans to be legalized; no further discretion to be conferred on the county commissioners. The proviso in the fourth section of the act of 1845, was probably designed to apply to the fund which the county of Bond received under the internal improvement law. By a special act, passed on the 12th of February, 1839, that county was expressly authorized to loan the fund, and expend the income on the objects for which the appropriation was made. By an act of the 21st of February, 1843, this fund was added to the school fund of the county, and the county commissioners were required to pay over to the school commissioner, the amount of the same in money, or “ good solvent notes, well secured.” In complying with these directions, it is highly probable, that many of the notes given for indebtedness to the fund, were transferred to the school commissioner, and were, in fact, unpaid on the passage of the act of 1845. Under the general language of the act, the debtors might demand a renewal of these securities, at the reduced rate of interest; and the proviso was inserted to avoid such consequences.

The Circuit Court properly required the county commissioners to draw a general warrant on the treasurer, for the payment of the sum in dispute. The money drawn from the bank had been mingled with the funds of the county, and could not be restored in kind. The course adopted was the only way in which payment could be enforced.

The relator was entitled to his costs. The judgment for costs is not against the county, but against the commissioners personally. By the express provisions of the statute, the successful party in the proceeding for a mandamus recovers costs in all cases.

The judgment of the Circuit Court must be affirmed, with costs.

Judgment affirmed.