State Ex Rel. Lawrence v. Morrison

Pearson, C. J. Upon the evidence, the commissioner finds facts, “ that Roseboro acted in good faith, and as the agent of the company of A. B. F. Gaither and Co.,” and upon these facts, as a conclusion of law, he held that the defendants, (who stand in the shoes of Roseboro as guardian of the relators,) were not chargeable with the value of the cotton sold to Harbin, or with the excess of the shares of Dr. Lawrence and Mrs. Long.” We are to take it that his Honor adopted the finding of the commissioner as to the facts, and also that he concurred in his conclusions of law, by overruling the exceptions. In this case we see no error. Roseboro was the guardian of the relators, and also the agent of the company of A. B. F. Gaither & Co. In the latter capacity he sold the cotton, and as he acted in good faith, there is no ground upon which he can be made liable for error in judgment in selling to a speculator on time at a high price, instead of retaining it or selling it at a lower figure for cash, or to some one, who would agree to give a note with good security. It will be remarked that the bona fides of Roseboro is proved by the fact that he sold his own cotton to this speculator upon the same terms, and lost that ■ as well as the cotton which he sold as agent of the company. As Roseboro, in making sale of this cotton, was acting not *166 in his capacity of guardian of the relators, but as agent of the company, the action was misconceived. Instead of being upon the guardian bond, it would seem that it ought to have been an action against the other members of the company for contribution, on the ground that as they had received from the agent their shares of the cotton in full, and by reason of the loss on the sale of the last lot of cotton, the relators had received nothing, the loss should fall ratably upon all of the members of the company, leaving the guardian bond as a “dernier resort,” in case the othei members could not pay a ratable contribution, on which to allege a breach, that the guardian was guilty of negligence, in letting the other members take their shares in full out of the first sales, and permitting the shares of his wards to be put off until the last, which turned out to be a losing operation. There is no error. Pee Cueiam. Judgment affirmed. Note. — We are pleased to see that the intelligent counsel who made up the statement of the case set out .only so much of the evidence as was necessary to show the finding upon the Issues of fact, and do not encumber the record with all of the evidence, which overloads the case, increases the costs of litigation, and is very embarrassing to this Court. PEARSON, C. J.