Long v. . Pool

Rodman, J. There was evidence in this case tending to prove two different states of fact between which the jury had to choose. 1. The evidence on the part of the plaintiff tended to prove that he gave the note to Pool upon a contract that he would carry it to Tennessee and endeavor to collect it from the maker, and if he failed to do so on presentation that he *481 would bring it back to the plaintiff. He left it with Hamby to collect, and authorized him to retain out of the proceeds 825, which Miller owed him, which sum Miller agreed to pay plaintiff. The Judge charged the jury that if they believed this to be the true state of facts, plaintiff was entitled to recover the value of the note, and that defendants were guilty of a conversion of it. There was no exception to this part of the Judge’s charge, and we are not called on to consider it. 2. The evidence on the part of the defendant tended to prove that he agreed to take the note and do the best he could with it. That it was delivered to Hamby under the circumstances above stated was not denied. His Honor charged the jury that if they believed that Pool received the note upon this agreement he was not guilty of having converted it, nor was he guilty of gross negligence. It seems to us that the question was properly left to the jury as a question of fact. We see no error in the instructions of the Judge. The agent of plaintiff may have acted imprudently, but we see no evidence that he acted fraudulently, and the jury have found' that he did not. For mere error of judgment an agent with authority to do the best he can, is not liable. There is no error. Pee Cueiam. Judgment affirmed.