Arrott v. Brown

[23] The opinion of the court was delivered by Gibson, C. J. The general rule certainly is, that for an omission to keep the principal regularly informed of the agent’s "transactions, and the state of the interests entrusted to him, the damages are to be proportioned to the actual loss. In Harvey v. Turner, however, on the authority of which, the jury received the direction that is now the subject of error, it was ruled, and perhaps for the first time, that where the information transmitted is such as may induce the principal, in the adaptation of his operations to his means, to rely on an outstanding debt as a fund on which he may confidently draw, the agent makes the debt his own. Such is the naked principle of that case; and, as an exception, it is entirely consistent with the general rule asserted in Elliott v. Walker, which has been said to conflict with it. It is undoubtedly an exception; but an exception which, resting on special circumstances, is as undoubtedly a reasonable and a wholesome one. In that case there was something more, however, than mere want of diligence in the transmission of information. There was negligence preceded by a positive act which had tended to beget a confidence not justified by the event, and which, therefore, called upon the agent the more imperiously to neglect no opportunity of removing the false impression which his act of commission had contributed to make. The money had been paid over or settled on account, without the suggestion of a possibility of reclamation. The agent was the party who sought re-embursement; and it was held that his silence for nine months after he had charged himself with the debt in a rendered account-current, had made it his own; the propriety of which it is difficult to doubt. To show by specific evidence a consequential derangement of the principal’s plans, and the exact amount of the loss suffered from it, would require him to expose his whole business in all its ramifications and minute details; and to sustain it before a foreign tribunal with all the books and papers of the house, properly authenticated or proved, would be intolerably inconvenient if not impracticable. His other business would in the mean time be left to regulate itself; and it would be found better, in the end, to have given up the claim, than to have pursued it under so many disadvantages. Nor would a jury be able to estimate, with any degree of precision, the loss incurred from a sacrifice of means in providing for sudden and unexpected responsibilities, and from a consequent relinquishment perhaps of profitable speculations. These are considerations which make it more politic and just that the delinquent factor should, in such circumstances, take the responsibility of the debt, and the risk of collecting it, than that the wronged principal should be drawn to define the exact amount of his loss by proofs so vexatious and oppressive. Such is the principle of Harvey v. Turner; and do the circumstances of the case at bar fall within it 1 In respect of Young’s debt, [24] there was nothing to indicate that it might be relied on as a productive source of ready money. Its existence was intimated by an ordinary account of sales, which, however, intimated not that it might be depended upon as peculiarly available; and there consequently was no positive act productive of the confidence which is supposed to have been disappointed by the event. So far as regards the transmission of information, therefore, the jury had to do with an ordinary case of negligence falling within the general rule;" and consequently nothing of that sort called upon them to give damages beyond thé amount of the loss shown to have been actually suffered. It may, however, become a grave subject of inquiry before another jury, whether the defendant’s supineness in suffering the goods to remain with Young after his apparent default in respect to remitting the proceeds of the bales sold at auction, ought not to fix him for the whole. If it turn out that Young failed to do what, under the circumstánces, he was bound to do, it will be the business of the judge to charge that it was the defendant’s duty to take the residue of the goods out of his hands; and failing to do so, it could not be said that the actual extent of the damage suffered, is less than tire value of the goods lost by it. In respect to Polwell’s debt, it is entirely clear that the defendant’s responsibility stands on the general rule that the damages are to be in proportion to the loss actually incurred from the negligence. Judgment reversed, and venire de novo awarded.