Lewin v. Dille

RylaND, Judge, delivered the opinion of the court. This was an action of assumpsit, brought by the plaintiff against the defendants, on the common counts only. There was testimony showing a long continued course of dealing, and running accounts, between the plaintiff and these defendants. The plaintiff was a merchant, and the defendants were the owners of the Buckeye Copper Mines in Madison county. One Pomeroy was the manager and superintending agent of the business of the mines for the defendants. These accounts were made by him with the plaintiff, and were reduced by payments from time to time, leaving a balance due to the plaintiff, being part of the demand sued for in this ease. Many points were raised in the court below, and the record contains several bills of exceptions. Some of thpse points it will be necessary to notice, while others are considered of no importance. 1. There is nothing calling for the correction of this court on the point in relation to the taking of depositions, before the parties were served with the summons and before issue. The-defendants were non-residents ; an attachment had issued and their lands were attached, and an order of publication made against them. The suit was pending ; and by our statute concerning depositions, section 1st, “any party to a suit pending in any court of record in this state, may obtain the deposition of a witness, to be used in such suit conditionally." 2. The objection that the justice of the peace, before whom [69] tbe deposition was taken, could not certify that the taking was postponed from the 19th to the 20th of the month, by consent of parties, is not well taken. This was a matter before him at the time, and he is as competent to place this on the face of the deposition as he is to say that the defendant (or plaintiff, as the case may be,) was present by his attorney or his agent, and thereby conclude him as to notice. 3. The change of venue was not properly applied for; no sufficient steps were before the court, authorizing an order for the change to be made, and it was properly refused. We also pass by, as unimportant, the motions about suppressing depositions or to reject parts of depositions. 4. Nor is there any error in refusing to permit the defendants to read the paper purporting to be a copy of the instructions given by Pomeroy, the agent, to Lewin, the plaintiff, in regard to the sale of the ores in England. The paper would have been proper evidence, if a ground had been made for its admission ; it appeared to be a copy ; the original was not accounted for, no notice to produce it. There is nothing showing that this paper was in the possession of defendants’ counsel. True, it was proved to be in the handwriting of Pomeroy, but that does not show that Lewin ever saw it. Had the defendants made a proper foundation for the admission of this paper to the jury, the refusal then would have been error. 5. There was no error in the ruling of the court upon the matter of adjourning over to a day on which court was to begin at a different county. This point was decided in the case of Samuels v. State, 3 Mo. Rep. 68, and we consider this part of the statute merely directory. 6. There was no error in the point made concerning the plaintiff’s reading entries from his own books ; these had been offered in evidence by the defendants themselves. They used these books to prove a fact on their behalf ; then having showed their confidence in these books, they having introduced them for one purpose, the books were properly admitted afterwards for another against them. [70] 7. There was error in the court below in permitting the plaintiff to read, as evidence, the paper purporting to be the contract between Lewin and Pomeroy. This the defendants objected to, but the court overruled the objection, and it was read, no proof of its execution or of Pomeroy’s handwriting being offered. 8. There was error also in giving the sixth instruction for the plaintiff, which is as follows : “If the jury believe from the evidence that Lewin had instructions to sell the ores at Swanzea, and that he sold them at Liverpool, and that after a knowledge of that fact came to the defendants, they failed to give notice to Lewin of their dissent and disapprobation, but permitted the proceeds to be applied to their benefit, then they are responsible on that account, and the jury ought to find for the plaintiff as to these items; and if the jury believe that Lewin credited the proceeds of said sale on account which defendants owed to plaintiff, by their direction or consent, then they received the benefit thereof.” This instruction does not contain the law, nor does it truly set it forth to the jury. If Lewin had instructions to sell the ores at Swanzea, in Wales, and he sold them at Liverpool, and that the defendants, after receiving knowledge of this fact, failed to give notice of their dissent and disapprobation to Lewin, but permitted the proceeds to be applied to their benefit, then they are responsible on that account, is surely a new doctrine in the law of principal and agent. The factor must follow the instructions of his principal, and his principal is never bound to notify him, that he disapproves his breach of instructions. He must look to his instructions for the safety of himself. If he goes beyond them, and sells in a market not allowed or permitted by the instructions, though the sale may be good as between the purchaser and agent and principal, yet the agent is responsible to his principal for all loss or damages which his principal has sustained by such breach and violation of instructions. The record is exceedingly voluminous, and encumbered with many bills of exceptions scattered all through it, containing [71] many unimportant points. There may have been some which escaped my observation, that would require our attention. However, the case must be sent back for the errors noticed in this opinion; and the clerk of the court below is required, in making out his transcripts, to have the record fairly copied; not to put in whole sheets by wafers, and to have an index to his record. Let him see that attention is paid to these matters in future. The judgment of the court below is reversed, and the cause remanded, the other Judges concurring.