Langdon v. Burrill

[468] The opinion of the court was delivered by Kellogg, J. The only question raised in this case arises upon the instructions given by the court, in answer to an inquiry made by the jury, after the case had been committed to them and they had retired for consultation, but before they delivered their verdict into court. The plaintiff having made certain advances to and incurred liabilities for the defendant, the defendant, to secure a reimbursement of the same, executed to the plaintiff a bill of sale of a quantity of butter and cheese, under an express agreement with the plaintiff, that, if a certain draft, which the defendant drew for the purpose of paying the plaintiff for his advances, .were not paid, he might consign the butter and cheese to the house of Hurd, Hutchins & Co. The draft not being paid agreeably to the terms of the contract, the produce was consigned by the plaintiff to the house agreed upon by the parties, and the avails of the same being insufficient to reimburse the plaintiff for his advances, the present suit was brought to recover the deficiency. The instructions given to the jury, before they retired, were satisfactory to the parties, and were undoubtedly correct. And as to the inquiry addressed by the jury to the court, we are inclined to think, it was entirely unimportant, as the plaintiff’s right to recover did riot depend upon any answer called for by the inquiry. That the plaintiff was entitled to recover, provided the jury found the facts, which, under the charge of the court, they must have found, even if the defendant had no remedy against the consignees for their alleged unfaithfulness, we think there can be no doubt. The inquiry and answer were therefore unimportant in determining the issue submitted to the jury. But we are of opinion, that the answer to the inquiry of the jury was substantially correct. The object of the inquiry was to ascertain, whether the defendant had a remedy against the consignees for their unfaithfulness. The jury were told that he had a remedy, by a suit in the name of the plaintiff for the defendant’s benefit ; and this, we think, can hardly be doubted. And the jury were farther told, that the defendant had a remedy by suit in his own name, provided he was the general owner of the property. This, we are also inclined to think, was correct, when taken with the qualifica [469] tion annexed, that they found the defendant the general owner of the property. The evidence tended to prove, that the defendant was the general owner, and that the plaintiff acted as his agent in making sale of the property. This agency, it is true, was coupled with an interest and a right to reimburse himself, from the avails of the produce, for the advances made. But if it were doubtful, whether the defendant could maintain a suit in his own name against the consignees, or even admitting that he could not, it is not such an error, as should affect the judgment. The judgment of the county court is therefore affirmed.