Witcher v. Brewer & Michael

PECK, O. J. — It is insisted by appellee’s counsel, that the evidence shows that the horse, for the loss or conversion of which this suit was brought, was borrowed by the defendant Michael on his own account as an individual, and that none of the evidence connected the defendant Brewer with the' transaction; and as the complaint charges the defendants with a joint liability as partners, there could be no recovery, on the evidence, on said complaint; and therefore, if. the court erred against the plaintiff in the charge given, or in refusing to give the charge asked, it was for this reason error without injury.An examination of the bill of exceptions shows .that the counsel is mistaken as to the evidence on this subject. The defendant Michael was examined as a witness on the trial,, and stated, “ that when he. borrowed the horse he intended to ride to Benton, on the business of himself and- Mr. Brewer, who were partners.” This was sufficient to charge the defendants, as partners, for the loss of the horse, if he died for the want of proper care on the part of the defendant Michael, by whom he was borrowed and used. For torts arising either from: the acts or negligence of one partner, in the course of the partnership business, all the members of the firm "are liable as partners. Story on Part. § 166, p. 257. From what is here said, I do not wish it to be understood that it is held no recovery could have been had, in this case, against the defendant Michael, if it had appeared that the horse was borrowed by him on his own account, and used by him in his own private business, and not in [122] the business of both defendants as partners. Generally, torts are regarded as several; and in an action against two jointly as tortfeasors, if the evidence shows one only to be guilty, the one proved to be guilty may be convicted, and the other acquitted. The action will not be defeated altogether by the failure to prove both defendants jointly guilty. 1. Oh. PL 86, 87. This objection being disposed of, I proceed to the consideration of the errors assigned. I have carefully examined the charge given by the court, in connection with the evidence as it is stated in the bill of exceptions, and I am unable to see in it any error of which the appellant can complain, — any error by which he is prejudiced. It is insisted that the charge is erro-: neous, because it invaded the province of the jury by assuming that the witness Q.uiney Martin was the special agent of the defendant Michael, to borrow the plaintiff’s horse. The said Martin was the plaintiff’s witness, and was examined by him, without any cross-examination on the part of the defendants. He stated, in substance, that he was employed by plaintiff to attend to his stock; that he had no authority, as such employee, to lend plaintiff’s horses; that in July, 1871, defendant Michael came to him, and stated that he wanted to borrow a horse for two or three days, to go into the country, and requested witness to see plaintiff, and tell him that he (Michael) wanted to borrow a horse ; that he went as requested, and told plaintiff that said Michael wished to borrow a horse for two or three days, to go into the country ; that plaintiff replied “ It was all right,” “ to let him have the horse; ” that Michael came the next morning and got the horse, and that the horse was never returned. Although, generally, the question of agency is a matter of fact, to be found by the jury, yet, when the fact of agency is proved, the court may decide whether the agency is general or special, and charge the jury accordingly. A special agent is one who has a delegated authority to do a single act; a general agent is one who is delegated to do all acts connected with a particular trade, business, or employment. Story on Agency, § 17, p. 19. The witness Martin, on the evidence in this case, was clearly the special, and not the general agent of the defendant Michael. He was simply authorized to borrow a horse for him, of the plaintiff, for two or three days, to ride into the country, or to borrow a horse for two or three days, without stating for what purpose he was to be used. In either case, the court committed no error in charging the jury that said witness Martin was a special agent, and that it was the duty of the plaintiff to inquire as to the extent of his authority. The horse was in fact loaned to defendant Michael, for two or three days, to ride into the country. If the plaintiff had [123] sought to charge the defendants for the loss or conversion of the horse, because riding him to Benton, some twenty miles off, was not within the scope or purpose for which the horse was loaned, an appropriate charge should have been asked to that effect. This was not doné. As to the charge asked, we are unable to see what pertinency it has to the case, as it is presented in the record. There was no error in refusing to give it, for that reason. The judgment is affirmed, at the appellant’s cost.