Thompson v. Sproul

Opinion by Mr. Justice Green, The learned court below gave to the defendant every possible opportunity to get a verdict, if he could convince the jury of the truth of the facts upon which he based his defense. Upon reading the testimony, however, it is not at all surprising that the verdict was rendered in favor of the plaintiff, as the evidence in support of his claim was overwhelming. Besides the positive testimony of the plaintiff and his son, through whom the transactions in Central Traction stock were conducted, the various receipts and other writings which emanated from the defendant were almost, if not quite, conclusive, in favor of the plaintiff’s contention and against that of the defendant. The opening receipt upon which the first purchase was made was to E. B. Thompson, Sr., and all the other receipts for money paid to the defendant’s firm, and they were numerous, were to E. B. Thompson. But when the wheat transactions were commenced, and until they were closed, all the letters were addressed to E. B. Thompson, Jr. Now the wheat purchases were not commenced until many months after the last purchase of Central Traction was made. The last of the stock purchases was made on April 18, 1891, and the first purchase of wheat was not made until January 27,1892. The earliest letter given in evidence from the defendant’s firm in relation to wheat was addressed to “ E. B. Thompson, Jr.” dated March 18,1892, and notified him that in pursuance of his instructions they had that “ day sold for your account and at your risk, 10 thousand May wht. 84 in stop.” Every subsequent letter containing similar notices was addressed in the same way, and the transactions were declared to be made, “ for your account and at your risk.” This being the state of the correspondence in relation to both accounts it wpuld follow, almost as a matter of course, and with the highest persuasive force, that the defendant and his firm (which was changed during the transaction) knew perfectly well that there were two persons with whom they were dealing, [270] one named “E. B. Thompson” for whom all the purchases of Central Traction were made, and the other named “E. B. Thompson, Jr.,” for whom all the wheat transactions were made. It is not necessary to repeat, or even to indicate, the positive and emphatic testimony of both the father and the son, who testify that all the transactions in Central Traction were for the account, and with the money and the securities of the father, and that the defendant’s firm was fully notified of this at the very beginning, when the first deposit was made. And also the equally positive testimony of both, that all the transactions in wheat were made at the sole instance of the son, and for his account only, and that the father had no knowledge of them whatever. It is enough to know that there was an abundance of such testimony in the case, that it was all in parol, and hence was for the consideration of the jury exclusively, and that in no aspect of the case would it have been at all proper to withdraw the evidence from them with a binding instruction for the defendant. A perusal of the testimony satisfies us that the verdict was fully warranted by the testimony. These views dispose of the first assignments of error. The answer of the learned court below to the defendant’s second point was undoubtedly correct. The point was too broad as was said by the court. A mere authority from the father to the son to purchase stock for the father, and that being known by the defendant’s firm, would certainly not justify the latter in allowing the son to withdraw money from the account for his private use for any purpose. Nor can the fact that the father allowed the son to draw out some of the money and use it for himself operate as a general sanction for all the son’s acts, nor clothe him with the authority of a general agent. The third point of the defendant was affirmed. The additional answer by the court was entirely favorable to the defendant. It gave him the opportunity to get a verdict if he could convince the jury that the two accounts were for the benefit of the same person. What was said about that person being the son was entirely correct in a legal sense, and was the natural comment which the whole contention of the defendant, that it was all intended for the son, would draw from the court. But there was no denial in the answer that if the person intended in the point was the father, the result of nonliability would [271] follow. The great stumbling block in the defendant’s way still remained, to wit, the hypothesis that the two accounts were for the benefit of the same person. The jury manifestly did not believe anything of that kind, nor is it possible to see how they could have entertained such a belief. The whole drift of the defense was the contention that the two accounts were for the benefit of the son, and not of the father. It was to that aspect of the case that the mind, both of the court and the jury, was directed, and it was very natural for the court to so interpret the meaning. If the point was intended to include the plaintiff in the category “ of the same person,” candor would require that idea to be more explicitly conveyed. Otherwise the generality of the phrase is misleading. Even if the court were technically in error in omitting to attract- the attention of the jury to the proposition of the point as applied to the father, instead of the son, we would not reverse for such a reason, but would hold the omission of the court to be due to the want of clearness in the point. But the court was not in technical error because the point was flatly affirmed. Judgment affirmed.