Hatcher v. Comer & Co.

Blandford, Justice. Comer & Company brought their action against Hatcher [421] & Baldwin upon a promissory note for $1,038.90, dated May 30,1878, and due October the 15th thereafter; also upon an account for $70.83. The defendants pleaded payment of the note and recoupment as to the whole. Upon the trial of the case, defendants introduced a letter in evidence from themselves to the plaintiffs, dated 17th October, 1878, in which they stated that they had shipped to plaintiffs forty-five bales of cotton, and instructed plaintiffs to sample and put the cotton on the market, and with the proceeds to pay their note. They also showed from pi aintiffs’ books that the cotton was sold and realized some thirteen hundred dollars, which was placed as a credit on the account of defendants, which account consisted of several items besides the note sued on. Defendants introduced evidence to show that if the cotton had been sold according to instructions contained in their letter, it would have realized eighteen hundred dollars, more than sufficient to have paid their note and the account. Plaintiffs in error insist here that, under these facts, the note is paid off, and the damage which they sustained by reason of the failure of the defendants in error to obey their instructions was more than sufficient to extinguish the account, and that this should be allowed them by way of recoupment. The defendants in error contend that, by the custom of merchants which obtains in Savannah, as they had advanced plaintiffs in error on the cotton, they were not bound to obey the instructions of the plaintiffs in error, but might hold this cotton and sell in their discretion. “ Peculiar confidence being reposed in a factor, he may, in the absence of instructions, exercise his discretion, according to the general usages of the trade.” Code, §2111. “ The primary obligation of an agent or factor, whose authority is limited by instructions, is to adhere faithfully to those instructions, for if he unnecessarily exceed his commission, or risk his principal’s effects without authority, he renders himself responsible for the consequences of his [422] act; and if loss ensue, it furnishes no defence to him that he intended to benefit his principal.” 12 Ga., 205. We take it that these principles thus enunciated are the law of this state, and whatever particular customs there may be prevailing in the city of Savannah, they must give way to the law. If the instructions were given by plaintiffs in error to the defendants, as insisted on by them, and in this the record sufficiently sustains them, then the court below should have instructed the jury as they prayed, so as to give them the benefit of the law thus laid down, and it was error to have refused the request on this point. Whatever damage the plaintiffs in error may have sustained by the failure of the defendants in error to sell the cotton as instructed, they had the right to recoup against the claim of defendants in error; and the court errel in refusing the request of plaintiffs in error on this point. If it be true, as contended for by the plaintiffs in error, that they shipped to defendants in error forty-five bales of cotton, with directions to sell the cotton and pay the note sued on, and if defendants in error did sell the cotton, and it brought enough money to pay off the note, then this was an extinguishment of this debt, and the defendants in error could not recover upon it. The court should have so instructed the jury, and it was error to have refused the instruction. Code, §2869. Pritchard vs. Comer, 71 Ga., 18; 51 Ga., 507; 57 Id., 450; 34 Id., 558; 27 Id., 47; 30 Id., 857; 45 Id., 565. The principles here announced will, we think, be sufficient to control this case upon another trial. Judgment reversed.