Tiffany v. Savage , 2 Gill 129 ( 1844 )

Semmes, J.,

delivered the opinion of this court.

The question for our decision in this case is, whether upon the facts proved on the trial below, the court erred in not leaving it to the jury to decide the issue between the parlies?

The suit was brought by Henry Tiffany against John Savage, to recover the price of a certain quantity of goods', which had been purchased of the plaintiff by a certain Lewis M. Hughes, and forwarded to the defendant. The testimony offered by the plaintiff, consisted of an account with a probate thereto annexed, and of the deposition of the said Lewis M. Hughes, which had been taken, together with the deposition of Holker Hughes, the defendant’s witness, under a commission issued for that purpose. The account was headed thus,

“Baltimore, Sept. 22nd, 1838.

“ John Savage, by Lewis M. Hughes,

Bought of Henry Tiffany.”

Then follows the items, amounting in all, to $260.07. To this account is annexed the affidavits of the plaintiff and his clerk, George Stanard,jr., proving the correctness of the same, in the usual way; and that it remained unpaid. The deposition of Lewis M. Hughes, stated in substance, that he had purchased the goods from the plaintiff in the name of the defendant, and that he told the plaintiff the goods were for the defendant. That deponent had them directed to the defendant’s iron works, in Pennsylvania, and that he afterwards received a letter from the defendant, in which he complained of delay in the arrival of the goods, and of a want of attention through some one’s fault, in his not receiving proper information in respect to the same ; that said letter acknowledged the receipt of the goods, with the exception of one package, which deponent afterwards learned had been received by the defendant. But it was shown by the deposition of Holleer Hughes, the defendant’s witness, that the said Ilolker Hughes had purchased of the defendant a certain lot of blooms, and had undertaken to pay for them in merchandise, to be procured in Baltimore. That he accordingly gave instructions to the said Lewis M. Hughes, (deponent’s agent in Baltimore,) to purchase such goods as the defendant might require, from any house with which deponent was in the habit of dealing. That the goods were purchased as ordered, and bills for the same rendered to deponent, with which the said defendant was duly charged, &c., on the books of the “Mont Jilto” furnace; that amongst the bills so rendered and charged, was the bill of Tiffany, the plaintiff, for the goods bought of him, as aforesaid, by the said Lewis M. Hughes ; and upon the whole evidence, the defendant by his counsel, prayed the opinion and direction of the court to the jury, that the plaintiff was not entitled to recover, because it was not proved that Lewis M. Hughes was the authorized agent of said defendant, in purchasing said goods from the plaintiff, and forwarding them to the defendant, which opinion and direction the court gave; and it is contended, that the court by thus taking all the facts within its own exclusive cognizance, usurped the province of the jury, and decided upon the “measure and quantity of the proof,” as a question of law. Let us see whether the judgment of the court below, is obnoxious to the objections which have been urged against it. Jt was certainly necessary, in order to entitle the plaintiff to recover, to establish the fact that the said Lewis M. Hughes had some authority, either express or implied, from the defendant, to act as his agent in purchasing the goods. And, if the court below was right, in granting the defendant’s prayer, we must conclude that the evidence offered by the plaintiff, taken by itself, was legally insufficient to warrant the jury in finding that fact. See the case of Cole, vs. Hebb, adm'r. d. b. n. of Wm. Gwyther, to be found in 7 Gill & John., 20. But we are not warranted in coming to such conclusion, from the testimony offered by the plaintiff in this cause. The account, which we find in the record, with the joint affidavits of the plaintiff, and his clerk, George Slanard, jr., thereto annexed, as aforesaid, shows on its face to be an account by the plaintiff, against the defendant, for goods sold and delivered, and is the plaintiff’s identical cause of action in this suit. This account, it appears, was suffered to go to the jury as evidence; to which is to be added, on the part of the plaintiff, the deposition of Lewis M. Hughes. Now, notwithstanding it maybe true, that if the whole testimony, in the cause on both sides, be taken together, our conclusion might be, if sitting as a jury, that the verdict should be found for the defendant; yet seeing, as we do, that there was evidence offered by the plaintiff, legalljv sufficient to warrant the jury in finding the issue, which it was offered to sustain; testimony, which if left unaffected by the defendant’s proof, would have been conclusive in the plaintiff’s favor; we are of the opinion, that the court below erred in granting the defendant’s prayer.

We therefore, reverse the judgment, and order a procedendo.

judgment reversed.