Rapp v. Grayson

THE refusal of the Court to give instructions to the jury, which are good law but not applicable to the case, cannot be assigned for error. The usages of commerce regulate the duties and privileges of commission-merchants, and generally form their contracts in business; which usages are matters of fact, and susceptible of proof. It is as much the duty of a commission-merchant to obey instructions, with regard to the shipping of goods deposited with him to be shipped, as it is to keep them safely while in his care. This duty devolves on all who are acting for him as clerks or agents; and, while they are recognized as acting for him, their authority must be presumed to be co-extensivc with his, as to the business he is thus transacting by them. G. deposited goods in the ware-house of R., a commission-merchant, and R. agreed to ship the goods to a certain place by a good boat, but not with W. and his boat. R., afterwards, shipped the goods with W. and in his boat. Held, in case the goods were lost,—first, that R. was liable to G. for the damages sustained by the loss, and that he would have been so liable, had he merely contracted for the safe-keeping of the goods;— secondly, that even if R. were not bound, in law, to obey the instructions given him as to the shipping of the goods, he would still be subject to the action of G. for delivering the goods to W. contrary to those instructions;—thirdly, that though G. might have recovered against W., and the recovery would have barred a subsequent suit against R., yet G. was not bound to resort to W. But it was also held, that the action by G. against [131] R. could not be sustained without proof of the loss of the goods. If the evidence, relative to the merits of the action, be contradictory, and the jury have any grounds for their verdict in favour of the plaintiff, a Court of errorswill not reverse a judgment on the verdict, because a new trial had been refused. A liter, if there was'no evidence of a fact essential to the support of the action.