Brett v. Bassett

Beck, J. 1. New Trial: discretion or trial court in granting. I. The verdict was for $400. The motion to set it aside was .based upon the ground, among others, that it was in conflict with the evidence, and that there were errors of law in the instructions. We think the verdict wholly inadguate — -the proof clearly showing that plaintiff is entitled to recover a much larger sum. It would not be proper for ns to state the sum which, in our opinion, plaintiff ought to recover upon the evidence before us. It is sufficient to say that in our opinion it should he more than was awarded him by the jury. We are of the opinion that the circuit judge wisely exercised his discretion [341] in setting aside the verdict, thus securing to plaintiff another opportunity to obtain justice. Error and abuse of discretion must be made to appear to justify the reversal of rulings of the character complained of in this case. 2. Agent: presumed to act for principal within the scope or his authority. II. The defendants introduced evidence tending to provo that the grain in question, or a part of it, was purchased by one emjdoyed by them as their agent on his own court. The giving of one of these instructions' was one of the grounds of the motion to set aside the verdict. It is probable that the instructions, if not erroneous, were misleading, in that the jury may have understood that they imposed the burden of proof upon plaintiff to show, after proving the authority of the agent to purchase for de-' fendants, that the grain was bought for defendants, and not upon the account of the agent individually. The agency, with authority to purchase grain for defendants without restriction as to quantity or price, brought to the knowledge of plaintiffs, being established, the plaintiffs would not be required to prove that the agent intended the grain for his principals and shipped it to them, and did not make the purchase for himself; and if such were his intentions and acts, they would not affect the rights of the plaintiff in the absence of knowledge thereof. And, if the agent purchased the grain for defendants, the fact that he did not deliver it to them would not defeat plaintiff’s rights to recover against the princqials. This would be true if plaintiff had no knowledge for whom the grain was purchased,— whether for the principals or the agent individually. These rules ought to have been clearly expressed in instructions to the jury. Affirmed.