DeBaun v. Atchison

Napton, J., delivered the opinion of the court. This suit was brought to recover the value of some bird cages ship-ed upon the steamboat Amaranth, of which the defendants were owners. The cages were taken to the boat by two men, named Farrington and Davison, and a receipt was taken from the second clerk in the name of the plaintiff. Farrington held himself out as owner to the captain, accompanied the cages on the trip, and when the boat reached her destination, New Orleans, received the cages and paid the freight. The cages, it seems, were made by one Davis, by the directions of Davison and Farrington, and Davison was indebted to the plaintiff, and this was the ostensible reason for having the receipt taken in the name of De-Baun, the plaintiff. [548] The whole case turned upon a question of fraud or authority, and the instructions given to the jury on this bead are not objectionable. The only objection urged to them is, that there was no evidence authorizing any such instructions, but after a verdict against the plaintiff, such an objection would not be entitled to much weight. To justify the verdict of the jury in this case, we do not think it was necessary to implicate" the plaintiff in any actual or intended fraud. It is sufficient that by the consent of the plaintiff, Farrington was placed in a position very well calculated to impose upon the officers of the steamboat. He was the apparent owner of the freight, to every one except the second clerk, the ava-wed owner. He was evidently authorized by Davison to receive the cages and sell them, and it is not to be wondered at, that the jury believe that the plaintiff was aware of this authority. There was certainly some negligence on the part of the' second clerk in not calling for the receipt, when the freight was demanded. by Farrington, but under the circumstances, it is not remarkable; Upon a careful examination of the testimony, the verdict of the jury will not seem surprising. We should scarcely expect a different result, if a new trial was awarded. Without at all impeaching the motives of the plaintiff, we think there is evidence enough to show that the receipt was taken merely as a security, and that the principal, Davison and the plaintiff, both permitted Farrington to assume a position in the transaction which was well calculated to mislead the most wary. Judgment affirmed.