Hovey v. Robert Thompson & Co.

Mr. Chief Justice Walker delivered the opinion of the court: The giving of the first and second instructions for plaintiff below is assigned as error. They are these—1st, The court instructs the jury that they add up the pass books to ascertain the amount thereof; and 2d, If the jury believe, from the evidence, that the goods in question were sold on the credit of O. E. Hovey, by his arrangement, they will find for the plaintiffs. These instructions, we think, were calculated to mislead the jury. The first only requires them to add up the pass books to find the amount of goods charged upon them. The jury might have understood the instruction as directing them that the books were of that character of proof as precluding all other questions than the amount when footed up as extended by the person maldng the entry, whilst, if the proof satisfied them that the goods were obtained on the credit of Hovey, still it was their right to ascertain whether the price was correctly carried into these columns. And it was also for them to ascertain from the evidence, even if the goods were sold on the credit of plaintiff in error, whether any portion of them had been paid for by a previous settlement or otherwise, whilst this instruction seems, by implication at least, to inform the jury that they only had to ascertain the amount as charged and to allow it against plaintiff in error. This instruction should have been modified before it was given. The second should have been modified by informing the jury that if they were purchased on the credit of plaintiff in error, and had not been paid for, then they should find for defendant in error. The goods may have been purchased on Hovey’s credit and by his arrangement, and yet they may have been paid for at the former settlement, at least in part, and this question should have been clearly presented to the consideration of the jury. We think it was not, by this instruction, and that they may have been misled by it. The pass books were only proper evidence to' fix the amount of the goods purchased, and were only proper to be considered for that purpose, in case the jury were satisfied that Hovey authorized defendants in error to furnish them to Soper. The books did not, in the slightest degree, tend to prove that Hovey had given such authority. That was a fact which had to he proved by other evidence than the pass hooks. It is again objected, that the jury were permitted to take the pass books and bills of lading with them when they retired to consider of their verdict. They were offered and read in evidence, and were thereby in the possession of the jury, and could be taken from the bar to their room. (Seates’ Comp., 261, Sec. 30, Practice Act.) There was no error in this, but for the reasons already given, the judgment of the court below must be reversed and the cause remanded. Judgment reversed.