Betts v. Planter's & Merchant's Bank of Huntsville , 3 Stew. 18 ( 1830 )

By JUDGE WHITE.

In support of the assignment of error, it is insisted, that the Bank took the cotton for the purpose of re-imbursing the advance made to Betts, with the power of selling, either at New Orleans or New York, and that as soon as it was practicable to sell for a sum which would discharge the amount lent, they were bound to do i!, or abide the loss that might accrue from a depression of price. If this were admitted to be a correct position, the evidence rejected would then have been relevant and important, and if offered from a proper source, should have been received. Let us then into the soundness of the principle assumed. To mind it is by no means obvious, though the cotton were put under the direction of the Bank for the avowed purpose of refunding an advance made by them to Betts, that they were thereby necessarily bound to sell as soon as it would produce the amount, lent. This indeed was the primary, but surely, not the only object of the arrangement; though to authorize the appropriation, it was necessary it should be expressed. The partios when they made it, no doubt had a view to the uncertainties and fluctuations of the market, and as it is a reasonable supposition that the Bank took cotton enough, at a medium calculation, to se-, cure the money they advanced, the probabilities were as great that they would have something to refund, as that there would be a deficiency. If so, the Bank was required in common honesty to do more than merely secure their own funds, if the price at either one place or the other where they were allowed to sell, would demand such a course. Suppose the price had been, as contended, sufficient at New Orleans to pay the money advanced, but at New York, twenty-five per cent, greater, and the Bank had nevertheless sold at the former place, with a knowledge of the difference in (he markets; would not Betts have been justified in saying they acted selfishly and regardless of his interest? Or suppose his cotton had been sold at New Orleans, and that of the other dealers similarly situated, taken on to New York, and sold fora much higher price; can we believe Betts would have rested satisfied, though the sum he had borrowed was paid; when perhaps he freighted cotton enough as he supposed, not on-,3y to answer that object, but to have, according to calculations then made,at least a small overplus: I think not,and if so, then he should not complain of any honest, though mistaken measure which the Bank look within the scope of their authority to secure themselves or benefit him. They had an interest in selling the property at least for a price that would enable them speedily to realize their own debt. They dealt with Betts as with other debtors in the same condition, by whose injury they themselves would be prejudiced, and by whose success in that transaction at all events they would profit; then they liad no motive wii-fully to err, and if they mistook the future state of market, it was a matter about which they and others might well, and really did mistake. For the evidence shows that individuals having the management ot their own pro-property, did in the same season, and under the same pros-beets, make the same mistake. Then the proof rejected, if admitted, would have established nothing essential to the ends of justice. But conceding its importance, the manner in which it was offered demanded its rejection. The attempt was to prove by Williamson, what Mackey-had said about the price of cotton at a particular time and place, the quality of Beits’ lot, and the sum it would have commanded, &c. Taking Mackey to be the agent of the Bank, it does not follow that his admissions aro evidence against them. What an agent says or does, within his authority, in making a contract for his principal, or as an immediate inducement to a contract at the time it is made, constitutes a part of the res gesta, and is evidence of that contract against the principal. But his subsequent statements or admissions in pais, and his answer in Chancery, are not evidence against his principal. If acquainted with such facts, he is competent to prove them, and should be produced to state them as other witnesses, upon oath.^a We are then of opinion that there was no error in rejecting the testimony as offered below, and therefore, the juclg~ merit must be afi1rmed~

Judgment affirmed,

a 2 Wheaton 383. 10 Ves. Jun. 126-7. 1 Phil. 77, 79.