L. Mayer & Co. v. McLure

HARRIS, J., delivered the opinion of the court. This cause was submitted to us on demurrer to the answer of Thomas W. Broughton, administrator de lonis non on the estate of James W. McLure, deceased, filed in this court, to the scire facias against him. The point involved in this demurrer, was considered and determined in connection with a motion involving the same principle, in the case of The New Orleans, Jackson, and Great Northern Railroad Co. v. Thomas Rollins, Administrator, ante, and decided a few days since. It is there held, that the administrator de lonis non, under our statutes, being in full privity with the previous administrator, may prosecute a writ of error here without revivor; that a writ of error will equally lie against or for such administrator; and that a scire facias ad audiendum errores may be properly issued from this court, to notify the administrator de lonis non of the pendency of such writ here, sued out after the [401] death of the first administrator, and after the appointment of the administrator de bonis non. For the authorities and reasoning on which the decision rests, reference is made to the opinion in that case. The demurrer to the answer to this scire facias is therefore sustained. The cause is now submitted to us on the errors assigned. It appears from the record that this suit was instituted on the 22d February, 1856, against Charity McLure, administratrix of James W. McLure, deceased, on a note executed by him on the 29th January, 1853, payable to D. Hoffheimer, and indorsed by him to plaintiff. Defendant pleaded infancy, and a general denial. Plaintiff replied, setting up an act of the legislature, March 2d, 1854, taking effect from its passage, and removing the civil disability of the minor (defendant’s) intestate, and a new promise after the date of the act; and the cause was submitted to the jury on these issues. The note and indorsement were read to the jury, and the act of the legislature referred' to above. Dugald McCormick was then introduced as a tyitness, who proved that he was present when the note was indorsed to plaintiffs; that plaintiffs afterwards left the note with Hoffheimer, the payee, for collection; that witness, being a clerk of Hoffheimer, was directed by him to present said note to McLiyre for payment, which witness did, and demanded payment thereof for the plaintiffs; that McLure promised to pay the same. Witness could not recollect the time, but thought it was in the early Pp,rt of 1854, perhaps in January, February, or March; did not Recollect whether the indorsement on the back of the note was on it at the time he presented it, or not. This was all the evidence. On this state of facts, the court was asked by counsel for defendant to instruct the jury: 1. That if they believed from the evidence, that the note had been indorsed by Hoffheimer to plaintiffs, at the time it was presented to McLure by McCormick, then any promise by McLure to pay said note is not binding, unless the promise was made to Mayer & Co., or an agent of theirs. 2. If Hoffheimer was an agent of Mayer & Co., plaintiffs, he had no right to delegate the agency to McCormick, the witness. 3. That the jury, before they can find a verdict for plaintiffs, [402] must be satisfied, from the evidence, that the ratification of the note was made after the act of the legislature was passed. These instructions were given. An instruction was ashed by the plaintiff, as follows: “ If the jury believe from the evidence, that after the assignment of the note sued on, the plaintiffs left the note in the hands of Hoffheimer for collection, and that after the passage of the Act of March 2, 1854, Hoffheimer sent his clerk, McCormick, to McLure, to demand payment of said note, and that said clerk did so present said note and demand payment thereof for the plaintiffs, and said McLure promised to pay the same, such promise was binding on McLure in this action.” This instruction was refused. A verdict was rendered for defendant. Motion for new trial, on the ground of error in the court, in giving and refusing the above instructions, and because the verdict was contrary to the law and evidence. The record shows that the instructions were severally marked given and refused, under the statute, and so were made a part of the record. No exception was taken to" t-lre instructions on the trial. They were relied on in the motion, as caiise for new trial. A preliminary question is made, as to the necessity of making formal exception, on the trial, to the instructions given \or refused by the court. \ “A party will not be heard to move for a new trial, for the^dmission of improper evidence, when such evidence was permitted <^o go to the jury without objections; under such circumstances, N^he objection is considered as waived, unless it be made and notWd when the evidence is offered. But the misdirection of the judge 5^ always open for consideration, on a motion for a new trial.’? Chief Justice Sharkey, in Phillips v. Lane, 4 How. Miss. R. 122; McRaven v. McGruire, 9 S. & M. 34. “Before the adoption of the statute on the subject, no instruction of the court to the jury would be noticed by this court, unless the party objecting, did so by a bill of exceptions, signed' by the judge. Now it is sufficient if the instructions are indorsed by the clerk as given and refused. It would also be sufficient, if the record stated directly, that the charges objected to were given or withheld. Here there is no such statement.” Chief Justice Smith, in Field v. Weir, 28 Miss. R. 68. [403] It seems, therefore, to be settled by tire decisions of this court, that instructions which appear' in the record to have been “ given or refused,” are always open for consideration, upon a motion for a new trial. The first assignment of error presents the question, whether a promise, made to a clerk of an agent for the collection of a note, who has been directed by the agent to present it to the maker for payment, and who, at 'the time of such presentment, discloses the fact that he holds and presents the note for the benefit of the true owner, is either to be regarded as being made to a mere stranger, or comes within the rule, delegatus non potest delegare ? The principle asserted in the authorities cited by the counsel, that a mere casual declaration of the infant to a stranger, having no interest or authority, that he intends to pay, or that he will pay, constitutes no promise binding in law, is fully recognized. It results from the simple consideration, that no obligation can be created in law, where there is no such intention by either the promisor or promisee. The cases cited are widely different from the case at bar. Here the party demanding payment was, at the time, in the lawful possession of the note, for a lawful purpose. He might have received the money, and delivered up the note; and there can be no pretence, that such payment to him, and delivery of the note to the maker, would not have been a satisfaction by the maker. He was not then a mere stranger, but an agent of Hoffheimer, authorized to present the note and demand payment — to receive payment and discharge the maker; and to this extent he was the sub-agent of the plaintiff. The principal is liable to third persons, in a civil suit for frauds or misfeasances, or neglect of duty in his agent, or in those whom his agent employs, though the principal did not authorize or assent to it. The liability runs through all stages of the service. Story on Agency, ch. 17, §§ 452, 454; 2 Kent’s Com. 9th edit. 856, note (a). The principle, that an agent cannot delegate his authority, is founded upon the special trust and confidence reposed by the principal in the personal skill and integrity of the agent. The agent, therefore, has no authority to turn his principal over to another, [404] of -whom he knows nothing, but remains responsible to his principal, in all such cases of sub-agency. But it by no means follows that third persona, who deal with sub-agents, knowing the agency, are to be absolved from acts, or contracts made by such agents, in the name of the principal.' We have just seen, that while the original agent is liable to his principal for the acts or misconduct of sub-agents employed, without the authority of the principal, the principal is liable to third persons. As third persons, therefore, treat with the sub-agent, under the law, as with one having full authority, they have no right, as against such principal, to set up that the sub-agent is without authority to act for the benefit of the principal. The principal may ratify the act for his benefit, and may even sue the sub-agent for money collected by him, under such circumstances. 1 Peters R. 25; 1 How. U. S. R. 234; 3 Ib. 763. Cited in 2 Kent, 856, note (a). As between principal and agent, the rule we are considering is of general obligation. There are exceptions, however, even here, as when the business of the agency in its nature requires sub-agents. See 1 Tuck. Lect. 90, and authorities cited. But third parties, whose rights cannot be affected by such delegation of agency to a sub-agent, cannot be heard to complain. It follows, that the promise made by McLure to McCormick, the witness and sub-agent of plaintiffs, if made after the removal of the disability of infancy, was obligatory upon him. The instructions of the court assumed the contrary to be the law. This assignment of error was, therefore, well taken. Let the judgment be reversed, cause remanded, and a venire de novo awarded.