Fox v. Fisk, 6 Howard 328

Opinion of the court, by Mr. Chief Justice Sharkey. The case has been discussed at great length, and the record is voluminous and presents a mass of testimony which has been examined with great care, with a view to ascertain the propriety of the grounds taken for reversing the judgment, and we are requested to give an opinion on all the points raised, with a view to a final settlement of the entire merits of the case. The first ground taken is that the action is misconceived; the second, that the agency was insufficient to bind Fisk; and the third is the bar created by the act of limitations.

The force and application of these several points can be considered more conveniently by following the order adopted in the assignment of errors, the first of which is, that the court erred in excluding part of Fisk’s answer to Fox’s bill of discovery. Most of the answer excluded was objectionable, as it was argumentative and not responsive to the bill.

There were small portions excluded which might have been properly admitted; such as the statements containing the substance of the letters received; but as the letters themselves were made a part of the answer, these statements were immaterial; the defendants lost nothing by rejecting them. The second error is that the court improperly allowed Hoslip’s deposition to go to the jury. The ground of objection was, that the cross interrogations were not appended to the commission and forwarded.

This was mainly owing to the fault of the defendant’s counsel, and I incline to think that the court did right; the question, however, is of little importance, and I shall not examine it. Third, that the court erred in giving the several instructions asked for by the counsel of Fox. The correctness of this position must of course depend upon the instructions themselves, and our attention will be confined to such as may seem objectionable. The court instructed the jury, “ that if they believed from the evidence that the property and notes may have been converted into money by the agent of A.

Fisk & Co., they may presume such to have been the case, and in such case an action like this is the proper remedy.” The error consisted in telling the jury that if they believed a certain thing might have been done, they had a right to presume that it had been done.

By the bill of particulars, Fisk is charged with sundry notes of hand, without naming them, delivered to his agent by Kenneday, Elliott & Co. amounting to eight hundred and forty-four dollars; also with sundry “ book accounts on sundry persons, delivered by the same persons to the agent, amounting to three thousand five hundred and thirty-three dollars and forty-eight cents; also with three shares of stock in a steamboat company, amounting to three hundred dollars; and also with sundry receipts received by the agent, given by officers for claims deposited for collection, amounting to six hundred and four dollars and thirty-four cents.

In order to recover for money had and received, the plaintiff will have to prove the receipt of money, or of something which may be readily turned into money. 4 Phil. Ev. (late ed.) 117. It is said that the receipt of stock will not be considered as the receipt of money. Promissory notes, it is true, may be given in evidence under the common counts, but this must be between the original parties. Id. 15.

In such case the note is regarded as evidence that the maker received that much money from the payer, and in more recent cases it has been held that any holder of a negotiable note may give it in evidence against the maker under the money counts.

But this action is for the amount of notes made by other persons, which were delivered by Fox to Fisk’s agent, in liquidating a claim due from Fox to Fisk. _ After diligent examination, I have not been able to find any case like this, in which the action for money had and received would lie, without proof that the notes had been converted into money, or received and used as such. In the case of Gillard v.

Wise et. al. 5 B. & Cress. 134, the action was for money had and received for the notes of a banker deposited with the defendants, who were also bankers; but it was held to lie exclusively on the ground that ithe notes had been received as cash, and used as such by the defendants, by having them credited to their account in payment of the other bankers. So in the case of Peckard v.

Banks, 13 East, 20, a stake holder whojiad received as cash country bank notes, and who had paid them over wrongfully, was held liable in this form of action; but it was only because they had been received and treated as money by all parties. Vide 2 J. J. Marshall, 69. But even if the amount of the promissory notes could be recovered under the count for money had and received, still it must be perfectly clear that the book accounts, and the officers’ receipts, can furnish no ground for a recovery under this count without actual proof that the money was received for them.

They are never negotiated as notes are, nor are they evidence of debts. They are not binding or conclusive on any one. The court therefore should have charged the jury that the plaintiff was not entitled to recover for these items, without proof that the money had been received on them. Other instructions were given, which are less objectionable than that which we have just noticed, and we shall therefore proceed to the consideration of the remaining errors assigned. Fourth.

That the court erred in refusing to give the tenth instruction asked by the defendant’s counsel, to wit: “that if the jury believe from the testimony that there were no mutual accounts and mutual dealings between said Fisk & Co. and said plaintiff for more than six years before the commencement of this suit, then said action is barred by the statute of limitations of this state.” The question here presented is one about which there seems to have been much difference of opinion, both in England and the United States, and it seems to be still in an unsettled state.

I incline to think the court was right in refusing it; but as it is not important in the case, I shall give no positive opinion. Fifth. The next and only remaining error assigned is, that the court erred in refusing the defendant a new trial on the reasons set out in his motion, and in rendering judgment on the verdict against said Fisk. The two remaining grounds taken for reversing the judgment may be considered under this last assignment, to wit: that the agency of Caldwell and Findley did not bind Fisk to the extent claimed, and that the cause of action is barred by the statute of limitations.

Caldwell was first appointed agent of A. Fisk & Co. to receive payment of the debt due from Fox to Fisk, and his instructions were reduced to writing. His authority extended no further than the collection of the debt, either in money or its equivalent. Under this instruction he proceeded to Shannonsville, Tennessee, which was Fox’s place of business. He succeeded, to a limited extent, in the object of his agency; but before he consummated an entire settlement he left the place, giving the business over into the hands of Findley, to whom Fox had made an assignment of certain effects for the benefit of Fisk.

Caldwell could confer no greater power on Findley than he had himself, and Fisk never recognized the agency of Findley as extending beyond the mere collection of the debt due him. The correspondence shows this; in addition to which, Fisk was called on, by bill of discovery, to state whether Caldwell and Findley were not his agents. He answers that their agency extended no further than the collection of his debt. This answer being called for by the plaintiff, and introduced by him, is conclusive in settling the extent of the agency.

Both Caldwell and Findley were therefore special agents, entrusted to do a particular thing, in the doing of which they were expressly instructed to do nothing which would increase the liability of Fisk. The principle of law is a familiar one, that an agent .cannot bind his principal beyond the extent of his authority; and the law is even more rigid in circumscribing a special agent within his authority, than it is with a general agent. Any act exceeding the special and limited authority is a nullity. Story on Agency, sec. 126. On this principle it was held, in the case of Roseter v.

Roseter, cited from 8 Wend., that a special agent could not bind his principal by note, although he had full power to adjust all the concerns of the principal in a particular place; and it was also held that power conferred by general words must be construed with reference to the matters expressly mentioned.

Implied authority must be construed in the same way, and thus the authority of Findley could not be construed to extend further than the mere collection of Fisk’s debt, and any seeming latitude which the correspondence of Fisk may appear to sanction must be understood as applying to the single object of the agency. If the special agent in the case cited could not bind his principal by note, with equal propriety may it be said that Findley could not bind Fisk on account. His authority did not extend to creating obligations, but merely to thé liquidation of a single debt.

And of the extent of his power Fox was fully apprized; it was at his own suggestion tire agency was created. He was therefore not imposed on by Findley’s being held out as a general agent. And the transactions show that to a certain extent at least he did not rely on the liability of Fisk. There were two assignments of effects to Findléy for the purpose of paying the debt to Fisk, and these assignments may serve to throw some light on the question of agency. The last is dated 20th March, 1829, and by it Findley acknowledges the receipt of certain “ articles to be collected by him for the payment of A.

Fisk & Co’s claims against F ox, which when satisfied I bind myself to return (if any) the residue to said Fox.” The items in this receipt are charged in the bill of particulars. By this receipt Findley made himself personally responsible for the residue, and Fox accepted that responsibility. The first assignment is not in the record, nor is it accounted for, but we have no reason to presume that it was different from the last. The conclusion is, that Findley was looked to as personally responsible for all beyond the amount of Fisk’s debt.

Neither of the agents were authorized to take goods, except “at a sound value? This did not authorize them to take any thing beyond the amount of the debt, and if Fox with his knowledge of their authority trusted them further it was his own folly. When Fisk wrote to Findley to act in the matter as he would for himself, he is not to be understood as extending the authority of Findley beyond the collection of the debts; we have already seen that general expressions must be limited to tire object of the agency. There is another circumstance which tends strongly to show that Findley was a mutual agent.

When he established the store at Shannonsville he collected the debts due to Fox in cotton and other commodities, by paying to the debtor any balance that might be due in money. Fisk had remitted him no money, nor had he authorized him to pay any; on what authority then did he do so, unless at the request of Fox.

These considerations induce us to believe that the agency was not sufficiently general, either by express authority or by implication, to justify the verdict; but if there could be any doubt on this subject the remaining question is clearly with the plaintiff in error. • To avoid the operation of the statute of limitation, the plaintiff below replied to the exception, that the cause of action was an account between merchant and merchant concerning the trade of merchandize.

This exception is a good one, where the parties are both merchants at the time the cause of action accrued, if the account be unsettled or current, and mutual — that is, if it arose in a mutual or alternate course of dealing, consisting of debits and credits; and it must also have originated for articles of merchandize. Ballantine on Limitations, 70, 71, 72, 73 and notes: 6 Pet. 151, Spring et al. v. The Executors of Gray.

If the account has been stated ox closed, the exception does not apply, and it is insisted that the dealings were not mutual within the meaning of the statute, Fisk’s account having been stated and closed before the account of the plaintiff below commenced. The evidence on this subject is gathered from the correspondence which is made a part of Fisk’s answer. On the first of May, 1828, Fox wrote from Shannonsville, by his agent, to A.

Fisk & Co. at New Orleans, informing them that he was in custody at the suit of his creditors, but would reserve sufficient to satisfy them, and requested that they should send an agent to attend to their claim. On the 12th of May they appointed Caldwell as their agent, and in their written instructions say, “We now hand you our account current with that gentleman [Mr.

Fox] to this date^ — balance due us thirty-two hundred and twenty-two dollars twenty-seven cents.” On the same date they wrote to Fox, expressing their regret at his condition, and informing him that they had appointed Caldwell their agent to settle their account with him; they say, “Mr. Caldwell will also hand you our account current with you, with interest account to this day- — balance in our favor of thirty-two hundred and twenty-two dollars twenty-seven cents.” On the 10th of June, 1828, Fox wrote to Fisk & Co., and in his letter says, “Your friend, Mr.

Caldwell, arrived here 21st May; by whom I received your favor, accompanied with account of sales and account current, leaving in your favor thirty-two hundred and twenty-two dollars twenty-seven cents, all of which I find correct.” It seems that before the date of these letters there had been mutual dealings between the parties, and the necessity of a settlement became apparent from Fox’s situation; indeed, he suggested the propriety of such a course.

Fisk & Co. accordingly present the account current between them, showing the items and a balance due them, to the correctness of which Fox gives his written acknowledgment. This undoubtedly made it an account stated. It is brought precisely within the definition given by Lord Mansfield in Trueman v. Hurst, 1 Term R. 40. It is an agreement between both parties that all the articles are true and the balance just. On this state of case Fisk might have maintained an action without further proof than the letter of Fox; and the account thus stated was surely subject to the operation of the statute of limitations.

It had ceased to be an account current. In this settled state it was treated in the subsequent correspondence. All of the account of Fox has originated since Fisk’s balance was so stated and acknowledged. There were therefore no mutual dealings within the meaning of the statute. All subsequent dealings were as payments of this balance, or as charges made by Fox, without any new charges made by Fisk.

In rendering this account a second time; interest was added, and a charge for part of the expenses of Caldwell in going to Shannonsville; but the interest did not change the nature of the account; on the contrary, it shows it was considered as stated. Nor was it changed from a stated to a current account by charging for Caldwell’s expenses, for it was discretionary with Fox whether he would pay this or not.

It was, moreover, not an item which concerns the trade of merchandize, and a single item added to a stated account of long standing, does not bring it within the rule that the balance of an account stated carried to a new account, will make it an item merely in an account current. 18 Pick. R. 30. We therefore think that the evidence sufficiently established a stated account, and consequently Fox’s account was barred by the statute, because there were no open mutual accounts between the parties, and that for this reason also a new trial should have been granted. The judgment must be reversed and cause remanded.