Pulsifer v. Shepard

Mr. Chief Justice Walker delivered the opinion of the Court: It is insisted that the instructions given on behalf of appellee were erroneous. They state the law correctly, so far as it is applicable to the evidence in the cause, and were not calculated to mislead the jury. If appellant received the corn, to be shipped to Chicago, to be sold there, and he was to account for the proceeds of the sale, and the evidence showed that he had failed to account, ■ there could be no doubt of his liability. And it is equally true, that unless the agreement restrained appellee, he had the right to order it to be sold at any time, and appellant, as his bailee, would have been bound to use every reasonable effort to comply with the order, and a neglect by appellant to have the sale made,, would render him liable. If he agreed to ship the com and have it sold, it would be implied that, in doing so, he would be governed by the directions of the owner. If a tender was made, it devolved upon appellant to prove the fact, and if he failed in his evidence, he should fail in that defense. And a tender, to be available, must be kept good. Nor is it sufficient unless it is of a specific amount, and offered to be paid without annexing any terms or conditions. Again, the appellant, when he sold appellee’s corn, was bound to account to him for the proceeds, after deducting reasonable chai’ges. And if he wrongfully neglected and refused to sell the corn, and appellee thereby sustained loss, he would be liable for his neglect of duty, unless the same was afterwards ratified or approved by appellee. These principles were announced in the instructions and were based upon evidence that warranted them. There was some conflict in the evidence, but there was testimony which tended to sustain the propositions contained in these instructions, and it was the province of the jury to reconcile the evidence if that could be done, and if not, then to give weight to such as they believed worthy of credit. Nor can we say that the verdict is against the weight of the evidence, as it tended strongly to prove the issues found by the jury. In the light of the evidence, the damages are not excessive. We are satisfied that all of the questions were fairly presented, and the verdict is sustained by the evidence. The judgment of the court is therefore affirmed. Judgment affirmed.