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