Smith v. Jessup & Moore ( 1848 )

The Court

admitted the book in evidence to prove what it purported; but not to charge the defendants, unless the agency of Irving for defendants, such as would render defendants liable, should be otherwise satisfactorily proved.

Jessup & Moore advanced Irving $50 a week to carry on the mill, the paper being forwarded to them. They also furnished stock. They charged the mill with stock, freight, porterage and commissions on sales, and credited it with proceeds of sale of paper. Irving appropriated a part of this advance to liabilities of Dickey and Irving, who carried on the mill at first, then Irving by himself, as it appeared to the public; but Jessup & Moore afterwards took an assignment of the lease of the mill, furnished stock and advanced money for wages to Irving.

The defence was, that Irving was the only party liable. The paper mill was leased by William Twaddle in 1845, to Dickey & Irving, for two years. Jessup & Moore put in new machinery for Dickey & Irving, and in order to become their landlords they took the assignment of Twaddle’s lease, and executed a new lease to Dickey & Irving for mill and machinery, at a rent of $1,150. Hot having capital to carry on the business, they made an arrangement that Jessup & Moore should furnish stock and advance $50 a week to pay expenses, and should receive paper on sale to reimburse them the cost of stock, advances, commissions, &e.

Dickey & Irving dissolved, and Irving continued in the mill under the same arrangement with Jessup & Moore, up to the 4th of March, 1847, carrying on the business in his own name, for his own profit, and persons dealing with him on his own credit.

Judge Woottem

charged the jury:—1. That if the agency of Thomas Irving for defendant was proved, it was a general agency, and the defendants would be liable for contracts within the scope of that authority, even though defendants furnished him with money to pay for such contracts, which he misapplied.

Rogers, for plaintiff. Gilpin and Bayard, for defendants.

2. That unless it was proved that Thomas Irving was the agent of defendants and carried on this mill for them, at their risk and for their profit, the defendants were not liable. If he carried on the mill on his own account, though the stock was furnished by them, and a weekly advancement of $50 was also made, to put him funds, and he was to consign them paper for sale, and they to remunerate themselves out of the sales, this did not make him such an agent as would charge these defendants.

Verdict for defendants.