Roe v. Conger

Headnote

Where there are no exceptions, a verdict of a jury and judgment thereon will not be disturbed where there is competent evidence to support it, although the preponderance of evidence may be the other way.

This case was tried before Chief-Justice Robertson and a jury.

The action was for goods sold and delivered. In ¡November, 1867, plaintiff held an auction sale of certain farm produce, stock, and farming utensils, before then belonging to the estate of which she was administratrix. The defendant, a neighboring farmer, sent two of his hired men to purchase for him property at this public auction. One of them purchased, and had struck off to him, for the defendant, various articles of property, to the amount in all of eight hundred and. fifty-eight dollars and thirty-five cents; and the other purchased and had struck off to him, at the sale, articles to the amount of ninety-one dollars and ninety-five cents. All -the articles, so purchased, were delivered and taken to the defendant’s farm, and used thereon. The defendant acknowledged his liability for articles to the value of eight hundred and thirty-six dollars and forty cents, but refused to pay for the balance, about one hundred and fourteen dollars, alleging that the purchase of those articles was wholly unauthorized by him. He so testified, and the two hired men corroborated him in that respect on the trial. There was some evidence tending to show that the hired men.had discretionary authority as to what they should purchase on defendant’s account; also some evidence tending to show that all the property, including the articles in dispute, was bid.

off in the name of defendant, by the hired men,, respectively, and defendant’s name given to the auctioneer as the purchaser; and that afterward defendant ratified these acts of his agents, and agreed to pay. The preponderance of evidence, however, was the other way.

The jury found a verdict for the plaintiff for the full amount claimed.

The defendant appealed.

The verdict was against evidence, and should be set aside.

The sale of the goods in question was at auction, and there is no doubt that the defendant was not present at the sale. He can be charged with the amount in dispute only by establishing either that the goods which he denied having purchased were bought by his agents authorized to buy them, or that he agreed to become responsible for their purchases as his own.

There was no original authority to purchase the goods in question shown by the testimony. Both of the men who are alleged to have bought them for the defendant, while testifying that they had been authorized by him to buy some things, srich as hay, oats, &c., deny that they were authorized to buy the goods in dispute, and state that they bought those things for themselves, gave their own names in at the sale, and were personally charged with them by the auctioneer. There was no testimony by which these statements .are contradicted.

The jury could have had no right to interpret any thing in the conversation or acts of defendant as amounting to an acceptance by him of the purchases in question as his own, and as a.promise to pay for the goods so bought; such a promise would have been within the statute of frauds. The Judge’s charge was explicit on this point. Tet, as the proof is all to the effect that the defendant did not authorize the purchase, the jury must have founded their verdict upon some such supposed subsequent assumption of the debt by him.

No exception having been taken to the charge of the Justice this Court will review only the exceptions taken to certain parts of the evidence relative to questions of law, and none of such exceptions are well taken.