Humphreys v. Wilson

Simrall, J.: This cause is brought here by writ of error, to revise a judgment of the circuit court of Claiborne county. The defendant in error, Wilson, sued Humphreys, plaintiff in error, in assumpsit, founded on two promissory notes, and an open account. Humphreys pleaded non assumpsit, and non est factum, as to the promissory notes. The jury rendered a verdict for the plaintiff. A motion for a new trial was overruled, and a bill of exception sealed, embodying all the evidence. Several questions were made in the circuit court, and are repeated here in the assignment of errors. But the essential inquiry for our investigation, into which all others are merged, is, shall the verdict of the jury be sustained. The more important facts are, that one A. Willis, was overseer on the Prairie Plantation, in Washington county. That this plantation originally belonged to D. G. Humphreys, who resided in Claiborne county; that in 1861 the property was given by deed of conveyance to Daniel B. Humphreys, his son, who went, on the outbreak of the war, into the Confederate military service, leaving in the hands of the said Willis, sundry [334] bank notes of Alabama, Georgia and North Carolina banks, for the purpose of buying necessary plantation supplies; that he was on the place in October, 1864, and instructed said Willis to use said funds to buy salt or other necessaries, and also a horse for cavalry service. The defendant, D. G. Humphreys, testified that on the breaking out of the war, Henderson, the former overseer (as he understood) recommended, or left on the place, said A. Willis, as overseer, acting for his son Daniel; that witness never knew him or employed him; never gave him any authority to make contracts for him, or bind him in any way; that the only communication he ever had with Willis, by letter or otherwise, was on the business of his son, Daniel, whose agent he was, during his absence in the army ; that his letters to said Willis had reference to his son’s business ; that by those letters he did not intend to give authority to run the place in debt, believing it was provided with cotton and money to buy salt, or whatever was needed, and with no intention to give authority to said Willis to bind witness, or sign his name to notes ; that witness long before 1864, and since, has resided in Claiborne county. Two letters from the defendant, D. G. Humphreys, to Willis, were read on the trial; one dated August, 1863, among other things, contains as follows: “ I do not know what advice to give you about my property in that county. I can only say I want you to act for the best interest of the place. I can’t furnish you any supplies qf any sort. If you have any safe, good chance of sending for salt, I would do so. I want you to act in all cases as you would for yourself. This is all I can say about my business up there. Do the best you can and I will be content.” The other is dated October 26th, 1864. Among other things the writer says: “ I received your letter, and notice what you say. I have no salt to send you. Mr. Wood says you have the promise of some, and you will have to try and get as much as will do you. * * * I cannot give any [335] directions, as I do not know what kind to give, and you must do as you think best.” The notes sued on were signed, G. D. Humphreys, by A. Willis, agent. Plaintiff testified that he sold the salt and horse mentioned in the bill of particulars to the defandant, through Willis, his agent. The first salt was sold on the 23d of September, 1864, and the other lot afterwards. The horse he had seen plowing on Prairie Plantation. The small note was given for the first lot of salt, for which plaintiff accepted bank notes, on condition that they were to be returned, if witness could’ not use them. They could not be used, but were returned when the note was executed. That at the time of these sales the defendant was in Claiborne county; never saw him about this time in Bolivar. He considered the defendant as the principal. Prairie Plantation was several miles from where the witness lived. At the time of sales did not know, nor had he heard, that the Prairie belonged to Daniel B. Humphreys, but had heard it since; before that, was under the impression the plantation belonged to the defendant. Saw the defendant, for the first time, some time after the surrender, and asked him for payment. Defendant referred him to his son. Sillers, who owned the plantation adjoining Prairie place, did not know about the title to the property; but that it was worked by D. B. Humphreys since 1860. At the request of the defendant, the court instructed the jury to the effect, that before the plaintiff can recover he must prove that the defendant, Humphreys, authorized Willis to make the contract and bind him ; and if the jury believe that D. G. Humphreys never did authorize Willis to make the contract, or to incur any debt, to be binding on him, then, although they may believe the salt was bought, defendant is not bound to pay for it. The promissory notes were not stamped until shortly before the trial, when plaintiff put stamps upon them. For this cause objection was made to their being read in evidence. There was also a count in the declaration, on the original consideration, for which the notes were given, and a bill of [336] particulars filed. It is not.necessary to the decision of this case, to pass on the admissibility of the notes in evidence, for if the notes were invalid, and no evidence of a contract, then the plaintiff could go back to the consideration of the notes and recover for goods sold and delivered. Chit. on Bills, p. 144, and note; Jacob v. Lindsay, 1 East, 460; King v. Inhabitants of Pendleton, 15 East; 8 Barn. & Cress, 14; Greenl. Ev., § 436. The primary and essential fact in the case is the authority of Willis, who-professed to act as the agent of the plaintiff in error in making the purchases, and giving the notes. If it could be held that Willis had authority to make the purchases, but could not give the notes of his principal, that would settle the plea of non esi factum in favor of the plaintiff in error, but would leave him liable on the count of indebitatus assumpsit for the goods sold and delivered. An agent may be constituted by a sealed writing, by parol words, or by acts and implications. Story on Agency, § 46, p. 42. The exception is, that if the act to be done by the agent requires a seal, the instrument appointing him must also be sealed. The common law does not require that the authority to an agent to sign a written contract, should also be a writing. An agent may, by a verbal authority, or by a mere implied authority, sign or endorse promissory notes for another. Story on Agency, § 50, p. 46; Ransom v. Curtis, 19 Illinois, 456. The investigation before the jury, of the authority of Willis to bind the plaintiff in error in these contracts, was very thorough. The plaintiff in error, and defendant, and Humphreys, the son, testified, as did several others. The court charged the jury that the burden of proof was on the plaintiff to make out the agency, and if it had not been done, they must find for defendant. A stranger reading the letters of the defendant, Humphreys, in view of the fact that he was living two hundred miles from the Prarie Plantation, with regular communication cut off by the river, access by land precarious and uncertain on account of military operations, as shown by the testimony, and the conclusion would [337] be irresistible that Willis could be contracted with as agent, for salt and other necessaries, and that the defendant stood in that behalf, in relation to him, as a principal. At all events, there was testimony tending to prove this. It was the .province of the jury to weigh, consider, and estimate the testimony. The very intelligent circuit judge refused to disturb the verdict. What, then, is our duty ? In the case of Leflore v. Justin, 1 S. & M., 383, the court said, “it must be a very clear case in which this court will set aside the finding of the jury.” In Waul v. Kirkman, 13 S. & M., 605, the chief justice, for the court, said: “ When the evidence is conflicting or doubtful, it is a delicate matter for the appellate court to interfere with the verdict. There should, at least, be a great preponderance of evidence against the verdict. The question is not whether the verdict is right, but is the verdict manifestly wrong.” In Dickson v. Parker, 3 How., 222, the .court remarked; “The whole case was before the jury, and although it would appear from the bill of exceptions, that the preponderance of proof was in favor of the plaintiff, yet we cannot, for that reason alone, award a new trial. It is not our business to weigh the testimony. It is sufficient that we see proof that legally conduced to the verdict.” In this case, the verdict was not induced in anywise by the misdirection of the jury by the court. On the contrary, the instruction given, plainly laid down the principle of law applicable to the testimony. To set aside this verdict and award a venire facias, would be to substitute the opinion of this court on the testimony, in place of the verdict of the jury. The utmost we can do is to reverse a verdict found without testimony, or manifestly against the great preponderance of testimony. Judgment Affirmed. •