Jones, Kitch & Co. v. Turck & Co.

Beck, Ch. J. l. principau uabiil^of'' principal. I. The plaintiffs’ evidence tended to support the allegations of their petition. The only questions raised by the defendants relate to the instruetions given by the court to the jury. The objection is directed against the fourth and fifth instructions, which are in the following words : “4: If you find that John Haskins was the agent of Turck &' Co., and while acting as such, while traveling with the plaintiffs, and under employment as their treasurer, then his acts as such treasurer are the acts of the defendants, and they are equally liable as though the acts were the acts of the defendants themselves. “ 5. If you find that the said Haskins, while acting as the agent of the defendants, was also in the employment and under the pay of the plaintiffs as their treasurer, hé [249] was in sncb a relation to the plaintiffs that it was his duty to safely keep and account to plaintiffs for all the money he received as their treasurer, and if he failed to do so and the plaintiffs therefore suffered loss, the defendants are liable, and you should so find by your verdict.” These instructions leave out of view the familiar rule of law, that a principal is only liable for the acts of an agent, done in pursuance of and within the scope of his authority. It by no means appears that the acts performed by Haskins, as treasurer of plaintiffs, were done by him as the agent of defendants; in fact, the contrary rather is established by the evidence. He may have filled two positions, one as the agent of defendants and the other as the treasurer and clerk of plaintiffs ; in the last, he acted as plaintiffs’ agent. It is very plain that defendants will not be liable for his acts done as agent of plaintiff, while discharging the duties of treasurer. His acts as treasurer were the acts of plaintiffs and not of defendants. This point demands no further consideration. 2. mortgage Sabmtyof1^: mortgagee. II. The following instruction was also given to the jury: “ 9. If the defendants were in possession of the circus property under their chattel mortgage, it was their duty to defend their title and right of possession, and if they foiled and neglected to do so, but permifcted. the property to be squandered, or sold under executions and attachments, junior and subordinate to their own, they cannot now recover in, this action for the money secured by their mortgage; and, if you find that such were the facts, you will exclude from your calculations the money included in the original mortgage.” A,mortgagee, in the absence of fraud, is not precluded from recovery upon the mortgage debt because he permits the property covered by the mortgage to be sold upon an inferior claim or lien, and his failure to assert his right under the mortgage does not defeat recovery upon the indebtedness to secure which the mortgage was given. [250] The mortgagee may waive his remedy upon the mortgage without prejudice to his right of action to recover the debt thereby secured. These rules are undoubted and need no discussion ; the doctrine of the instruction now before us conflicts with them. It is to the effect that the mortgagee, by any act which would amount to permission, on his part, of the sale of the mortgaged property for the satisfaction of other debts of the mortgage, would be deprived of a remedy by action against the mortgagor. We will not be understood as holding that the mortgagee, in possession of goods under the mortgage, is not liable for neglect or carelessness whereby the goods are lost to the mortgagor. The circumstances of his possession may be such as to require him to protect the interest of the mortgagor. • Other objections made by appellant need not be considered, as for the errors in giving the foregoing instructions the judgment of the circuit court must be Reversed.