Spears v. Turpin

Garland, J. The petition states, that the defendants are merchants, transacting business in New-Orleans, in the name of Nugent, Turpin & Watt; and at Grand Gulf, in the State of Mississippi, in the name of Turpin, Watt & Co. The firm in this city, is sued for $2035 95, with interest, on an account against the firm at Grand Gulf. The account is annexed to, and makes a part of the petition. The caption is, “Messrs. Spears, Talbot & Co., in acct. with Turpin, Watt & Co.” Then follow various debits and credits, and at the foot is written: “ By bal. due you this day, $2035 95. “ Grand Gulf, January 25th, 1840. “ Turpin, Watt & Co., “ per Isaiah M. Brown.” The defendants, after a general denial, specially deny that the account was ever approved by them, or signed by any one authorized to sign for them. The evidence shows, that the account filed with the petition,, is in the hand writing of Isaiah M. Brown, and signed by bim ; that at and before the time it is dated, he was the “ clerk, or book-keeper,” of Turpin, Watt & Co.; and it is further shown,, that the defendants are the persons that compose that firm. The statute of the State of Mississippi was given in evidence,, to show that the rate of interest was eight per cent, and for no other purpose. There is no evidence, notwithstanding the special denial of the defendants, to show what special, or general powers Brown exercised or possessed, nor is there any of the correctness of the account, other than its production, and the acknowledgement as stated. When the case was first tried', the plaintiffs were non-suited : but a new trial was granted, and, on the same testimony, on a second trial, they had a judgment, and the defendants have appealed. The correctness of this judgment rests upon the question, whether the rendition of an account, by the clerk, or bookkeeper of a merchant, or trader, and an acknowledgment by him of a balance due, is obligatory and binding on such mer [296] chant, or trader, without its being shown what power, or authority was conferred by the employer on such clerk, or book-keeper. That there are acts and admissions, or statements of a clerk, or book-keeper, which have bound, and will bind the employer, or principal, is not doubted; and the case cited by the plaintiffs’ counsel (2 Serg. and Rawle, 197), is an illustration; but that case, and those in 1 Peters, 311, and 17 Johnson, 130, are unlike this, in several important particulars. In the first, it was proved that the person who gave the memorandums, or receipts, for hides received at the tan-yard, had been the sole manager of it for many years. That he was in the constant habit of making such purchases, of having leather made, and of selling, it. Neither of the proprietors resided in, nor very near the yard, and had very little to do with its management; and the party who was sued resided about forty miles distant, and never visited the place more than twice a year. The case in Johnson’s Reports, is not that of a clerk, or book-keeper at all, but is based on a promise of the defendant, made to the plaintiff, to become liable for a third person, in the event of his purchasing hides to an amount not exceeding one hundred dollars. The purchase was made, and it was held, that a receipt of the purchaser, and a-promise to pay for the articles, written on the back of the en-gagement to become security, was sufficient to bind the party who had agreed to become liable. In this case, the acknowledgment of Brown, is relied upon as evidence of a debt being due, or owing. The Civil Code, art. 2966, says, to “ acknowledge a debt,” the power to the agent must be express, and special. This we must take to be, also, the law of Mississippi, as the contrary is not shown. The business of a book-keeper is to make such entries in the books of his employer as he is ordered to do, to keep the accounts, and, when he is directed, to draw off, or copy from the books any that may be wanted, and submit them to his principal, and then do with them as he may be directed. A mere clerk, or book-keeper, has has no more right, of his own accord, to state an account in the name of his principal, and acknowledge a balance as being due, than he has to create a debt by signing a promissory note. The obligation is only different in form, but equally binding. No [297] man would ever be safe, if it were permitted, that he should be bound by any and every account his clerk, or book-keeper, might state, and deliver to another person, acknowledging that a balance was due, or owing on it, without any other authority, than that conferred by law upon an agent of that description. It is ordered and decreed, that the judgment be annulled and reversed, that the plaintiffs’ demand be dismissed as in case of nonsuit, they paying costs in both courts.