Clark v. McGraw

Christiancy J. McGraw, the plaintiff below, recovered a judgment against Clark in an action of assumpsit for four thousand dollars and interest, which he claimed to have lent to Clark. Seven errors are assigned in this Court. No plausible ground being [149] shown by the counsel for plaintiff in error, either in their brief or upon the argument, for the first, second, third, fourth or seventh assignments of error, and not having ourselves been able to discover any, we do not deem it necessary to notice them further. The fifth assignment of error is based upon the admission of Cuthbert’s testimony, giving the conversation between himself and Clark, a few days before the money was obtained, in which Clark asked him if he thought he could get the money (§4000) of the plaintiff, if Mansfield did not get home in time to go to Port Huron with the money; and being answered by the witness that he thought he could, replied that he would see. The question here presented is not upon the necessity of the evidence, nor upon its introduction at a particular stage of the case, nor whether, as independent evidence, it would alone have been sufficient to establish the loan; but whether, in connection with the other evidence in the cause, it was admissible. This conversation related to the same transaction between the witness and Saxton of the one part, and Clark of the other, to which both the former had already testified, and which had created the necessity on the part of Clark to raise this sum of money. The conversation tended to show Clark’s intention, in case Mansfield did not come in time, to apply to the plaintiff for the same loan which the testimony of the witness and Saxton, already given, tended to show he did apply for, through Saxton, a few days after, when it was known that Mansfield had not come in time. It therefore tended to show the understanding and intention of Clark, in the subsequent transaction with the plaintiff, and to corroborate the version of that transaction given by Saxton and the witness, and thus, in some degree, to prove that transaction a loan. In this view we see no reason to doubt its admissibility. The sixth, and only remaining, error assigned which we deem it necessary to notice, is the refusal of the Court to [150] charge that, “if the money was paid over to Rutlidge by Saxton, without the assent of defendant, it was not a loan by plaintiff to defendant.” This request must be understood as having reference to the paying over the money under the circumstances disclosed hj the evidence, and to all the evidence in the cause bearing upon Saxton’s agency, and the question of a loan; and the charge requested would have been, clearly erroneous, if there was any legal evidence in the cause tending to show that it was a loan from the plaintiff to defendant, though it might have been paid over to Rutlidge without the defendant’s assent, since it was for the jury and not for the Court to weigh such evidence. If this request can be sustained at all, it can only be upon the hypothesis assumed by the defendant’s counsel in their previous request, that Saxton was, as between the plaintiff and defendant, acting as the agent of the plaintiff in making the loan and paying over the money. We have been unable to discover in this record any evidence tending to sustain this hypothesis. Whether, as between MeGraw and the bank, or between him and Saxton, in the mere manual operation of drawing the check, Saxton might, or might not be considered for certain purposes as the agent of MeGraw, we are not concerned to inquire. As between MeGraw and Clark, all the testimony bearing upon the question tended to show that Saxton was acting as the agent of Clark, from the time of the apjolication to MeGraw for the loan, until the amount was paid over to Rutlidge; and the testimony of Clark does not tend to show that, as between them, Saxton was acting as the agent of MeGraw in any part of the transaction. The letter of credit taken by Saxton, and the check he drew upon the bank in the name of MeGraw, were but the mode or machinery, adopted for convenience, and as a substitute for the manual delivery of the money, and its transmission to Port Huron. And this mode, as the testimony tends to show, was adopted at the option and for the convenience of [151] Saxton, who did not wish to carry the amount in the shape of money. Saxton being in this matter the agent of Clark, this mode of effecting the loan must be considered as adopted at Clark’s request and for his benefit. The power of Saxton therefore to draw the check must be treated as a power obtained at the request and for the benefit of Clark, and as between him and the plaintiff, in legal effect, the same as if given to himself. And though, if Saxton after arriving at Port Huron had refused to draw the check, there might have been no loan, the plaintiff not having parted with the money, yet this would have equally been the case, had the power been given to Clark and he bad failed to draw it. And when the check was drawn and delivered by Saxton, the loan was complete, whether appropriated by him, according to Clark’s wishes, or not. In legal effect the transaction consummated, (as the evidence tended to show,) by the letter of credit and the check was, as between the parties to this suit, the 'same as if McGraw had delivered to Saxton, or to Clark himself, his own cheek or the money, and Saxton or Clark had taken this with him to Port Huron, instead of the letter of credit; and McGraw could be no more responsible for the proper application of the money by Saxton in the one case than in the other. The Circuit Court, we think, erred in charging the jury according to the second request of the defendant below, “ that under the testimony the loan, if ever made, was made at Port Huron, and not at Detroit, and that Saxton was the agent of the plaintiff in making the loan.” Unless the Court meant to make a distinction between the acts of Saxton in malting and in obtaining the loan, this charge was inconsistent with that which he afterwards correctly gave in answer to the request we have been considering; and if he intended to make such a distinction, and to say that, as between other parties than the plaintiff and defendant, Sax-ton was to be considered as the agent of the plaintiff, it was a point which did not arise in the cause, and tho charge upon [152] this point was calculated to confuse the minds of the jury. But this error was corrected by the subsequent portion of the charge and the verdict, and was one of which the defendant could not and does not complain. There is no error in the record affecting the validity of the judgment, and it must be affirmed, with costs. Campbell and Cooley JJ. concurred. Martin Oh. J. did not sit in this case.