Adams v. Capron

Cochran, J., delivered tide opinion of this Court: This suit was brought to recover advances upon an invoice of beef consigned by the appellant to Messrs. Huth & Co., of London. The advances were made to an amount largely exceeding the proceeds of the invoice, by drafts on Huth & Co., who had authorized the appellees to draw for the advances, upon their undertaking to be responsible for the amount of their overdrafts. When these advances were made, the appellees, to protect themselves from loss, obtained from the "appellant his promise to' refund the amount advanced above the proceeds of his consignment. The relation of Huth & Co. to the appellant, thus appears to have been that of an agent or factor, and towards the appellees that of a principal, entitled upon their contract to repayment of the amount overdrawn. The principles applicable to these relations must therefore be regarded in disposing of the questions presented by these exceptions. Assuming that Huth & Co. performed their duties as consignees or agents with due care and skill, we may remark generally that they have the right to be reimbursed to the full amount of their advances, and that they may assert that right against the appellant as their principal, giving him credit for the proceeds of his consignment, or against the appellees upon their undertaking of that liability; and the appellant may be required to refund to either of these parties, although he can be compelled to make but one satisfaction. If, however, there was negligence or misconduct on the part of Huth & Co., by which he sustained loss or damage, their right, as well as that of the appellees, to recover the excess of advances above the proceeds of the consignment, at most is only a qualified one, for the appellant may rely upon such negligence or misconduct as a defence [205] to any claim that either of them could make on that ground. The appellees, by a clear implication from their prayer, predicate their claim upon their liability to Huth & Co., and there can be no error in assuming that liability as the true measure or standard of their rights in this case. They became liable to an action on their contract to Huth & Co. upon their rendition of the account of sales showing the amount overdrawn, and in our opinion, a right of action then accrued to the appellees upon the appellant’s promise to them, subject, nevertheless, to such defences as he could make on the ground of negligence or misconduct on the part of Huth & Co. These principles are familiar, and, indeed, the theory of the case on both sides seems to require their concession. In applying them to the case as it stands upon the evidence contained in the 2d exception, we find error in the prayer of the appellees, granted by the Court below. Upon the hypothesis of that prayer, the jury were authorized to find a verdict in their favor, without regard to the conduct of Huth & Co., in reference to which evidence was offered on both sides. The fact of due care and diligence on the part of Huth & Co. was thus clearly shown to be an essential element of the appellee’s case, and it cannot be doubted that the instruction as to their right of recovery was founded on a hypothesis of fact which took from the jury the finding of other facts by which the right to recover might have been impaired or defeated. It is no answer to this proposition to say that an instruction may be had upon any given statement of fact, for even upon the authority of Whiteford vs. Burkmyer & Adams, 1 Gill, 127, that can be done only when the instruction asked is subordinate to, or in aid of a theory which embraces all the facts material to establish or defeat the right in controversy. The effect of an instruction that a plaintiff is entitled to recover upon the finding of certain particular facts, is to withdraw from the jury the finding of any other fact that would gratify or defeat the right asserted. Riggin vs. Patapsco Ins. Co., 7 H. & J., 291. And in the case of Bosley vs. Chesapeake Ins. [206] Co., 3 G. & J., 462, a prayer, predicated upon a statement of facts that did not enumerate all the other facts material to the right of recovery, of which evidence was offered, was-held to be defective. This principle is fully sustained by the more recent case of McTavish vs. Carroll, 7 Md., 366, in which the Court said, “that when the proof of the defendant, if believed by the jury, would establish any proposition inconsistent with the theory of the plaintiff’s prayer, . which is based upon his own evidence, such prayer cannot be given, because it must assume or admit all the defendant’s proof on the subject.” The appellant’s first prayer, which was granted, although presenting an immaterial question of fact as to the non-payment to Huth & Co., by the appellees, of the overdrafts, nevertheless submits the appropriate instruction upon the evidence in the case. The right of the'appellees is fairly presented as dependent upon the fact of due care and diligence on the part of Huth & Co., and in that view the prayer seems to be unobjectionable. In this particular, the prayer of the appellees is entirely inconsistent with that of the appellant, and we think it should have been rejected on that ground, if upon no other. The rendition of a verdict in conformity with either of them, necessarily implies a disregard of principles prescribed by the other, and it is impossible for us to say to which of these instructions the verdict should be referred. The answer, that the proper instruction was given in the appellant’s prayer, does not meet the case, for it does not appear to have been submitted in such terms as would impose - any limitation upon the inconsistent and opposing theory of that offered by the appellees. It was given neither in lieu of, nor as a qualification of the appellees prayer, and in the case of Haney vs. Marshall, 9 Md., 215, the Court held, that an erroneous prayer like that of the appellees, standing in the same relation to a proper instruction granted on the other side, should have been rejected, and we must hold here, as was held there, that we cannot refuse to reverse, on the ground of no injury done, because this record does not show the absence of such injury. [207] (Decided March 2d, 1864.) The appellant’s second prayer was properly refused. He appears to have made the consignment without any restrictions, and also to have authorized, his consignees to deal with it as their own. Under these circumstances, it is difficult to perceive upon what ground ho was entitled to notice from them of its depreciated value before selling it. The proposition of the prayer appears to be founded upon no defined or established rule of law applicable to that relationship of the parties. The first exception taken to the admission of evidence, we think cannot be sustained. Evidence in regard to certain sales made in London, of beef cured and packed by the appellant, had been previously offered without objection, for the purpose of showing or raising a presumption of negligence on the part of Huth & Co., and the evidence in question was offered to show the sale of other beef shipped by the appellant to the same market, for the purpose of rebutting or destroying the effect of that before offered. The objection was taken on the ground that the rebutting evidence did not relate to the same subject-matter, and for that reason was not admissible. We find by examining the testimony of Hawkins, Hackett and Adams, that there was a conflict of evidence on that point, and that the Court could not have sustained the objection taken without assuming, that the beef spoken of in the evidence objected to was not cured by the appellant. That we think the Court was not at liberty to do, and although the objection might have been successfully presented by an instruction to the jury that this evidence was not to be considered, if they should find that the beef mentioned was not cured by the appellant, still, we think, as it comes before us in this exception, that the ruling was proper. Finding that the Court erred in granting the appellees prayer, we shall reverse the judgment. Judgment reversed, and procedendo awarded.