Nesbit v. Stringer — 9 N.Y. Super. Ct. 26

Majority

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George F. Nesbit v. Jas. Stringer and Wm. A. Townsend.

(Before Campbell, J., Bosworth and Emmet, J.J.)

December 13, 1852;

February 26, 1853.

Headnote

When a sum of money paid to an agent is credited by the principal, the credit . so given is sufficient proof of the authority of the agent, so as to entitle the person making the payment to prove under what circumstances, and upon what account it was made.

When the liability of a defendant is sought to be proved by his verbal declaration or admissions to a witness, all the conversations between him and the ' witness, bearing upon the subject of the controversy, must be submitted to the consideration of the jury.

Motion for a new trial upon a bill of exceptions ordered to be heard at general term.

The action was for the recovery of a printer’s bill, and was tried before Mr. Justice Paine and a jury, in April, 1852, and a verdict rendered for the plaintiff for $152.80.

The case upon the pleadings and evidence is as follows:—

In April, 1850, F. H. Upton wrote a pamphlet in relation to the trial of Professor Webster, of Boston, and employed the plaintiff to print 2,000 copies of it. After they were printed he applied to the defendants, publishers in this city, to make publication and sale of it. They agreed to do so for the usual, compensation, but declined to take any risk of its publication, or assume any liability in respect to the expense incurred for printing it. Mr. Upton reserved four or live hundred copies

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for himself, and the remainder were sent to the defendants for sale.

The pamphlet sold well, and when nearly the whole number of copies sent to the defendants had been disposed of, Mr. Upton had a second interview with Mr. Stringer, one of the defendants, at their store, in which Mr. Stringer informed him that this first edition, or the greater part of it, had been sold, and that the defendants had orders for further copies, and requested him, Mr. Upton, to order a second edition of 3,000 copies. Mr. Upton told him he would give the order for the second edition in the morning. Mr. Stringer desired him not to delay it till then, but to give the order on that afternoon, lest they might take down the form from which the first edition was struck off. Mr. Upton thereupon went to the plaintiff’s office, and gave the order for printing 3,000 additional copies.

On the following morning a third interview took place between Mr. Upton and Mr. Stringer. Mr. Stringer called upon Mr. Upton and asked his permission to have printed on the cover of the second edition an advertisement of Stringer and Townsend, the defendants. Mr. Upton made no objection, but referred Mr. Stringer to the plaintiff, stating that the printer had more to do with it than he had.

The plaintiff printed the second edition, and it was delivered to the defendants in May, 1850, without their advertisement on the cover.

About this time Dr. Webster’s confession came out, which put an end to all speculation as to his guilt, or public interest as to the fairness of his trial, or legality of his conviction. The consequence was that a remnant of the first edition, and the whole of the second, remained from that time in the hands of the defendants unsold.

On the 15th Oct. 1850, Mr. Upton gave a written order upon the defendants in the following words :— ■

“ Messrs. Stringer & Townsend,

“Please account and make settlement with Mr. William Taylor of the proceeds of sale of the pamphlet, called £ State

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ment of Reasons, &c.,’ in relation to Prof. Webster’s trial, and oblige yours,

“ Fras. H. Upton.”

And on the 1st February, 1851, Hr. Upton added the following to that order:

“ The foregoing order, in favor of William Taylor, was given to enable Hr. Taylor to make settlement with Hessrs. Stringer & Townsend, not for his own benefit. He not having done so., the same is cancelled in favor of George F. Nesbit, Esq., in conformity with the order heretofore given to him for bill of printing the pamphlet alluded to.”

On the 10th of April, 1851, a person in the plaintiff’s employ presented to the defendants an account or bill for the printing of the pamphlet, and applied to them for the settlement of it. Hr. Stringer looked at it, and utterly refused 'to recognize it, but said he would account for the books sold, and paid him $92 69 on account of the pamphlet.

Neither the account presented on that occasion, nor the receipt given for the $92 69, were produced on the trial. The complaint in this action (which was commenced in May, 1851) claimed from defendants $172 71 as the balance due for the printing, &c., of both editions, after crediting defendants with $92 69, paid on the 11th April, 1851; but the plaintiff on the trial withdrew all claim against the defendants for the printing, &c., of the first edition. The allegation in the complaint, in regard to the second edition, is that the defendants requested the plaintiff to print and furnish to them an edition of 3,000 additional copies on their own account, and promised to pay plaintiff for the same; and it appears, from the account or bill of particulars annexed to the complaint, that the plaintiff’s bill for printing the second edition amounted to $152 80, the correctness of which was not disputed.

The defendants on the- trial offered to prove by their bookkeeper—

1st. That the person who called on them on behalf of the

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plaintiff, on the 10th April, 1851, received the $92 69 in full of all claim against the defendants for or by reason of the pamphlet in question, up to that date.

2d. That a statement of the accounts of the defendants, in connexion with this pamphlet, was exhibited to such person, and that it was on that basis that the $92 69 were paid to and received by him, and a receipt given.

The court excluded the evidence mentioned in both those offers, on the ground that no authority was shown to such person to give a receipt in full.

3d. That such person was notified and told to inform the plaintiff that there remained 3,117 copies of the pamphlet in the hands of the defendants, and that they were subject" to the plaintiff’s order, and that defendants made no claim to them whatever.

The court also excluded this, and the defendants’ counsel excepted to the decision, as to these three offers.

The judge charged the jury, that the question for them to decide was whether the defendants undertook the printing and publication of the second edition on their own account, and ordered the printing on their own account.

That the meaning of Stringer, in what he said' in giving Mr. Upton the order for the printing, or Mr. Upton’s understanding of it, were hot to be their sole guides in deciding what that order was. That the true rule was, what would a person reasonably have understood from what he said; or in other words, what, under the circumstances of the transaction and of the parties to it, was the fair construction of what the defendants said. And by the circumstances of the transaction, and of the parties, he meant all that had taken place by or between the parties, as proved in the case in relation to the printing and publication of the pamphlet, from Upton’s first seeing Stringer and Townsend, until the second interview, at which it was alleged the printing of the second edition was ordered.

The defendants’ counsel requested the court to charge the jury, among other things, that the jury were to construe the language of Mr. Stringer, in the second conversation, with reference to what was said in the first interview, and that all the

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conversations were to be taken together for the purpose of determining the legal effect of what was stated in the .second interview.

The judge refused to charge the jury as thus requested, otherwise than as contained in the charge above given, to which defendants’ counsel excepted, and the jury found a verdict for the plaintiff for $152 80, the amount claimed.

J. Graham, for defendants.

F. H. Upton, for plaintiff.

The first question to be examined relates to the exclusion of the evidence offered.

The order given by Mr. Upton on the 15th October, 1850, and its subsequent modification on the 1st February, 1851, taken together as they necessarily must be, mean simply a direction by Mr. Upton to the defendants to account and make settlement with the plaintiff for the proceeds of the sale of the pamphlet to this end that his bill for printing should be therewith paid; and,as the order was given long after the printing and delivery to the defendants of the second edition, it related to -the proceeds of sale of both editions. It admits of no other construction : and without stopping to consider how an order on the defendants for the proceeds of sale of the second edition can be reconciled with the claim that several months before, the defendants had ordered that edition on their own account and as their own property, and for their own benefit, let us examine what the effect of that order was as to the transaction between the defendants and the plaintiff’s agent on the 10th April, 1851, and as to the propriety of excluding the evidence offered by the defendants of what took place on that occasion.

The plaintiff had no interest in the proceeds of the sales of the pamphlet, except as a fund to be applied to the payment of his bill for printing, &c. Mr. Upton’s order shows this distinctly on its face.

The authority therefore which he obtained by the order was to demand from the defendants an account and settlement of the proceeds in order that they might be so applied ; and his

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agent made application to the defendants, not as an ordinary collector of a hill against them, hut as a person deputed by him to exercise the authority he had been vested with by Mr. Upton, that is to say, to get an account of the proceeds, and make a settlement as to whatever amount might on such accounting appear to be in their hands. The plaintiff by his own act has shown that he so considered it. If the $92.69 were received an account of the bill for printing the second edition only, for which he alleges the defendants contracted with him, he was bound to have credited that payment exclusively to the expense of printing the second edition, but the bill of particulars annexed to his complaint shows that this credit was given upon the whole account, for printing both editions, and that it was received therefore as proceeds accounted for, towards the plaintiff’s whole bill, and not as a payment on account of the bill for the second edition, or of any recognized or specific demand, which the plaintiff then claimed to have against the defendants. With these facts already in the case, the defendants had a right to show that a statement of their accounts in connexion with the pamphlet, was exhibited to the agent; that the money was received by him on that basis, in full of all claims against the defendants by reason of the pamphlet to that date; and that the defendants notified the plaintiff" through such agent that the unsold copies in them hands were subject to his order, without any claim to them on their part; and the evidence offered by the defendants for that purpose was improperly excluded.

Second, as to the judge’s charge. The evidence of Mr. Upton shows that he had three interviews with the defendants, or one of them, Mr. Stringer. That at the .last of these interviews, which was on the morning after the order for printing the second edition had been given, Mr. Stringer asked permission to have an advertisement of Stringer and Townsend printed on the cover of the second edition, and that Mr. Upton made no objection, or in other words, consented, so far as he was concerned. Mow the asking of this permission only one day after the alleged order, and the character of Mr. Upton’s answer to it, are pretty strong “ circumstances of the transaction and of the parties to it” in the language of the judge, to guide the jury in deciding not only what was Mr. Stringer’s meaning and

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Mr. Upton’s understanding of what Mr. Stringer said to him when he requested him to order the second edition, but also what was the fair construction of that request. For assuredly if the defendants had ordered the second edition on their own account, at their own risk, and for their own, benefit, they required no permission from Mr. Upton or any one else, to have what they pleased printed on the cover; and the fair presumption is, that Mr. Upton would have told them as much, if he then considered that they had given such an order.

This third interview was the most important part of the res gestae upon which the jury were to make up their verdict (except indeed the subsequent order given by Mr. Upton to the plaintiff on the defendants for the proceeds of sales), and instead of being excluded from the consideration of the jury it should have been directly brought to their notice.

It is no answer to this, to say that this conversation was after-the order was given, and that the plaintiff was not present at it. Neither was. he present at the second interview. Mr. Upton was the medium through which the order was given, if Mr. Stringer gave it; Mr. Upton was the witness called to prove it;, and Mr. Upton must necessarily by his acts and language be the interpreter of it. The law is not so imperfect in its administration of justice as to give the plaintiff the chances of yesterday’s uncertainty, and deprive the defendants of the benefit of to-day’s explanation; and where the attempt is to fasten - a contract on a party for a losing undertaking, by inference from circumstances and conversations, he has a right to ask at least, that all the circumstances and all the conversations relating to the matter should be taken into consideration.

The .defendants’ counsel expressly requested the court to charge the jury that all the conversations should be taken together for the purpose of determining the legal effect of what was stated in the second interview, but the judge instructed them that they were to be guided in this respect by all the circumstances that had taken place in relation to the printing and publication of the pamphlet from Upton’s first seeing the defendants until the second interview at which it was alleged the printing of the second edition was ordered.

He therefore excluded from their consideration the conver

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sation which, took place between Mr. Upton and Mr. Stringer at their third interview; and upon that ground, the charge having been excepted to, as well as for the exclusion of evidence before referred to, the verdict should be set aside and a new trial granted.