Lyon & Co. v. Kent, Payne & Co.

PETERS, J. The charge given by the court, of its own motion, on the trial below, and excepted to by the defendants, was correct. The only negotiation that Singleton had with the firm of Kent, Payne & Co., touching the cotton, took place in January, 1865, at Richmond, Virginia-If there was a sale at all, or any contract entered into between Singleton, a citizen of Illinois, and Kent, Payne & Co., citizens of Virginia, by which any title or interest in the cotton was attempted to' be passed from the one to the other, it was wholly void, and incapable of ratification. No trading between these parties was then allowable, without a permit of the government. And the President’s pass ■was not sufficient for that purpose. — McKee v. United States, 8 Wall. 163, 166; The Ouachita Cotton, 6 Wall. 521, 531; Brown v. Tarkinton, 3 Wall. 377, 381; Kennett v. Chambers, 14 How. 38, 50. Then, the order alone warned all who looked upon it, who knew the domicil of the parties to it, that it could not be evidence of a legal title. And it was not, unconnected with other proof, a power to sell or disposof the cotton. — 663 — Yet, though the order of itself was not evidence of a sale to Singleton, or a power to sell, it shows that the owners of the cotton had authorized him to take possession of it. This he could do, as the agent of the owners. This was not forbidden to him or to them by law, or the policy of the government. They could change the agency of the custody of their cotton from one person to another. And they could make any person, capable of acting as an agent, such agent to take possession of their property for them, and keep it for them. They could transfer its custody from Browder to Singleton without a violation of law. The objection which might be supposed to exist to such an agency during the war, ceased as soon as the war was ended; and its purpose being then legal, it might be legally consummated. Any one, except a lunatic, imbecile, or child of tender years, may be an agent for another. It is said by an eminent author and jurist, that “ it is by no means necessary for a person to be sui juris, or capable of acting in his or her own right, in order to qualify himself or herself to act for others. Thus, for example, monks, nfants, femes covert, persons attainted, outlawed or excommunicated, villains and aliens, may bo agents for others.” Story’s Agency, §§ 6, 7, 9. So, a slave, who is homo non civilis, a person who is but little above a mere brute in legal rights, may act as the agent of his owner or his hirer. — Powell v. The State, 27 Ala. 61; Stanley v. Nelson, 28 Ala. 514. It was, then, certainly not unlawful, or against the public policy of the nation, for Kent, Payne & Co. to keep their cotton, and keep it safely, during the late rebellion. It is the undoubted law of agency, that a person may do through another what he could do himself in reference to his own business and his own property; because the agent is • but the principal acting in another name. The thing done by the agent is, in law, done by the principal. This is axiomatic and fundamental. It needs no authorities to support it. Qui facit per alium, facit per se. — Broom’s Max., marg.; 1 Pars. Cont., 5th ed. p. 89, et seqStory’s Agency, § 440. And to this it may be added, that an agent in dealing with the property of his principal, must confine his acts to the limit of his — 664 — powers; otherwise, the principal will not be bound.— 1 Pars. Cont. 41, 42, 5th ed.; Powell v. Henry, 27 Ala. 612 ; Potts v. McCoy et al., 20 Ala. 578; Allen v. Ogden, 1 W. C. C. 174. And it is also the duty of one dealing with an agent to know what his powers are, and the extent of his authority. — Van Eppes v. Smith, 21 Ala. 317; Owings v. Hull, 9 Pet. 608. Then, the agency to receive the delivery of the cotton from Browder, in compliance with the order, was not illegal. If it went beyond that, it was void. And those who dealt with Singleton were bound to know this, as they were bound to know the law. — 9 Peters, 608, supra. There was conflict in the testimony before the jury as to the extent and character of the agency of Singleton. There was a wide difference between his statement and that of Kent, with whom he transacted the business about the cotton, as to the purpose and scope of the agency intended to be established. It is not to be presumed that the parties intended to violate the law. But whether they did, or not, and what were the powers intended to be conferred upon the agent, are questions for the jury. This is the effect of the charge. It was pertinent to the testimony, and does not misstate the law. Such a charge is not error. It does not appear from the record that the charges asked by the defendants on the trial below were “ moved for in writing.” There were eight of these. Those numbered 1, 2, 4, 5, 6, were given, with the verbal remark by the court that they were given “ in connection with the main charge of the court.” Had the charges been in writing, this would have been a violation of the statute. The language of the Code is, that “ charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written.” — Bev. Code, § 2756. The language of the learned judge in the court below means nothing, or it means that the charges moved for shall be, to some extent, controlled by the “main charge” already given. This was a qualification added to the charge moved for. Such qualifications the language of the law will not permit. The proper practice is, for the judge to take the charge and write on it, “given,” or, “re — 665 — fused,” and sign Ms name thereto, and hand it to the jury when they retire to consider of their verdict, as a part of the record in the case. This is the affirmative declaration of the law, and such affirmation negatives all other modes of procedure. — Marbury v. Madison, 1 Cr. 137, 174, 175; Cohens v. Virginia, 6 Wheat. 260, 395. It has been decided that such charges must be in writing, else the court is not bound to give them or to refuse them. This is so because the law requires it. Eor a like reason they must be given as the statute directs. — Edgar v. The State, 43 Ala. 45; Myatts et al. v. Bell, 41 Ala. 22. The presumption, when the record is silent, must be in favor of the action of the court below, so as to sustain it. — Shep. Dig. p. 572, §§ 145,146; Merritt v. Fleming, 42 Ala. 234; Bradford v. Barclay, 42 Ala. 375. Here, then, it must be presumed that the charges asked below were verbal charges, which the court might give or refuse with qualifications, as might be thought proper. And in such case, if the qualification was not erroneous, as it is not here, the action of the court will be sustained. The record does not show that the court, in this exception, was in error* I now proceed to consider the charges which were asked and refused. These were those numbered three, seven and eight. These charges do not appear to have been asked in writing. They might have been refused for this reason, but as it is not shown in the record that they were so refused, it will be presumed that this objection was waived by the court below, and they were refused because they embodied incorrect expositions of the law. — English v. McNair, 34 Ala. 40. The third charge asked and refused was in these words: “ That if they (the jury) believe, from the evidence, that the plaintiffs so transferred the cotton to Singleton and his associates, as to enable them to appear to the world as the owners of it, and that Guy was really deceived thereby and purchased the cotton in good faith, they must find for the defendants.” There is no proof in the record that Singleton and his associates were “ the owners ” of the cotton, or pretended to be the owners of it. There was evidence tending to — 666 — show that the cotton was transferred to Singleton and his associates “ absolutely and unconditionally,” with power to sell it and dispose of it; but not that they were owners. This charge was not applicable to such testimony. It went beyond it; it was therefore abstract, and was properly refused. The seventh charge ashed and refused, was as follows,, that is to say : “ That if the jury believe, from the evidence, that the plaintiffs transferred the cotton to Singleton, without any restrictions over it, and by their contract or the papers entrusted to him, authorized the opinion that they had given Singleton more extensive power over the cotton than was in fact given, and Guy was therefore imposed upon, then the plaintiffs should not be permitted to avail themselves of the imposition.” This charge, as an abstract announcement of a principle of law, is correct. To have deceived Guy, and under this deception to have induced him to do, to his own injury and the plaintiff’s advantage, what he otherwise would not have done, is a violation of that well settled principle of law which forbids that one shall profit by his own wrong. Nullus commodum capere potest de injuria sua propria. Broom’s Maxims, 317, 320, 322 (marg.) But does the evidence set out in the bill of exceptions present such a case as entitles the defendants in the court below to invoke the protection of this principle ? There is no evidence that any of the parties to the transaction intended to act in bad faith or fraudulently. The only evidence of title to the cotton possessed by Singleton and his associates, was the order to Browder, and President Lincoln’s pass so far as that was connected with the case. These did not show ownership or a power to sell. This was worth nothing in his favor, unless Kent, Payne & Go. had authorized him to make such declarations. There is no proof that they did. He inferred it from what he understood to be his authority, Guy knew that Singleton could not derive any title to the cotton as owner, or interest in it, by the negotiation in Richmond, because the law forbid this. The contract, for that purpose, was wholly — 667 — void. He also knew that the papers entrusted to Singleton did not authorize the inference that the plaintiffs had given to him more extensive power over the cotton than was in fact given. There was, then, no evidence upon which to base this charge. It was correctly refused. The eighth charge asked and refused is obnoxious to a like objection. There was no evidence before the jury that the plaintiffs “ entered into any fraudulent arrangement with Singleton,” at any time or anywhere, about the cotton. The charge was, therefore, abstract; it was inapplicable to the proofs. The motion to have it given to the jury was properly denied. The judgment of the court below is affirmed.