Emmons v. Dowe , 2 Wis. 322 ( 1853 )

Rij the Court,

Crawford, J.

The goods, to recover the value of which this action was instituted, were sold by Crampton & Osborne to the defendant in error, who afterwards sold them to James M. Ray, Jr.; and to secure the payment of certain drafts and notes given by Ray to Dowe, as the consideration for the goods, a chattel mortgage was executed upon the same goods by Ray, whereby the mortgagee, Dowe, was empowered, at any time that he should deem himself in danger of losing his debt against Ray, to take possession of the mortgaged goods, and after such notice as the law directs to be given in cases of constables’ sales, to sell and dispose of the goods, and out of the proceeds of such sale to reserve and take the amount due ,to him by Ray, with interest thereon, and refund the residue to Ray. At the time of the sale to Dowe by Crampton & Osborne, that firm was indebted to the firm of John A. C. Cray & Co., and to satisfy this indebtedness, one of the drafts which had been given to Dowe by Ray was assigned to Gray & Co., namely : a draft for three thousand nine hundred dollars, drawn by Garrison & Fritz, of Panar ma, on Martin Oliver & Co., of New York, payable to the order of James M. Ray, Jr., eight months after date. As a security for the genuineness of this draft, Dowe assigned to Gray & Co. so much of the mortgage given to him by Ray as would secure the payment of the draft; or, in other words, he transferred to Gray & Co. three thousand nine hundred dollars of the indebtedness secured by the mortgage, “with priority of payment.”

This assignment was endorsed on the mortgage, and bears even date with it. Within a few days it was discovered that the draft assigned to Gray & Co. was not genuine, and thereupon they commenced an action of replevin against Dowe to recover possession of the mor{gagecj goods, in the District Court of the United States for this district; in which action the law firm of Emmons & Van Dyke were attorneys for the plaintiffs. There was a trial by jury of the issue joined in the replevin suit, which was upon a plea of non detimi, accompanied by a motion that the property was in the defendant Dowe; and the jury found that the defendant “did unlawfully detain the goods,” &c.; upon which finding, the District Court rendered a judgment for the plaintiffs, that they should “ have and retain the goods and chattels and property mentioned and described in the declaration,” and which had been delivered to them on the writ of replevin. By the direction of the plaintiff in error (Emmons), acting as attorney for Gray & Go., the goods were removed by the United States marshal from the store formerly occupied by Crampton & Osborne, to the auction store of Caleb Wall, in the city of Milwaukee ; and while they were in the possession of Wall, a proceeding by attachment was instituted in the United States District Court, by Cyrus W. Loder and others, as plaintiffs, against Crampton & Osborne, defendants, in which proceeding Wall, Dowe and Emmons were summoned as garnishees. After Wall was served with the garnishee process, and before he made answer, he proceeded to sell all of the goods at auction, by direction of Emmons ; and upon his (Wall’s) disclosure as garnishee, an issue was made up in the District Court, between the plaintiffs in the attachment proceeding (Loder and others) and Wall, which was tried by a jury, and resulted in a verdict and judgment against Wall, as garnishee, for the sum of one thousand eight hundred and ninety-five dollar's costs. This judgment was satisfied by Wall out the proceeds of the goods.

It appeared that while Wall had possession of the goods, several communications took place between Mr. Emmons, as attorney for Gray & Co., and Mr. Otis H. Waldo, who professed to act as the attorney for Doctor Dowe, in relation to the,sale of the whole stock of goods ; and it was claimed by the plaintiff in error, that when he had caused enough of the goods to be sold to satisfy Gray & Co.’s debt and costs, the sale was stopped, and that it was only in consequence of an arrangement with. Mr. Waldo, as Dowe’s attorney, and for the benefit of Dowe, that the whole goods were sold. The amount realized from the sale was $6,200, and the price agreed upon between Cramp-ton <fe Osborne and Dowe, when the latter purchased the stock, was $9,000.

The several eri’ors insisted upon in this case will be disposed of by enquiring, 1st, into the effect of the verdict and judgment in replevin in favor of Gray <fc Co., and against Dowe ; ‘id, as to the effect of the judgment in the garnishee proceeding in favor of Lo-der and others, and against Wall, so far as it could affect Dowe ; and 3d, whether, under the assignment of the mortgage, or a portion thereof, to Gray & Co., they were authorised to dispose of any more of the goods than became necessary to the payment of the debt of Gray & Co., and herein of the power of Waldo to bind or affect Dowe by his acts.

1. As to the effect of the verdict and judgment in replevin. It is contended by the plaintiff in error, that in the replevin suit the defendant Dowe, (who is plaintiff in the present action of trovei',) interposed P-^ea °f non deUnet, which, under section 23, of chapter 119, of the Revised Statutes, put in issue the property of Gray & Go. in the goods ; and that the notice appended to the plea, that the goods were the prop" erty of Dowe, ena'bled the latter to give evidence of his right and title to the goods, under section 24, of chapter 119, of the Revised Statutes, and that the judgment in the replevin suit must conclude Dowe as to their respective rights in the goods. In replevin, whether it be in the oejpit or deUnet, the principal matter in issue is the plaintiff''s property in the goods. Rogers vs. Arnold, 12 Wend. 30-34; 1 Chitty's Pl. 163. If the action be in the cepit, the general issue, non-cepit, admits the property to he in the plaintiff, and only denies the taking ; and hence it is necessary, if the plaintiff’s property in the goods is sought to be controverted, to interpose a special plea of property in the defendant, or a third person, traversing the plaintiff’s claim of property ; and if the action be in the detinet, the general issue, non-detmet, like the same plea in the common law action of detinue, traverses the plaintiff’s right to the property, or to the possession, and also the detention of the goods by the defendant. Vide R. S., chap. 119, sec. 22, 23; 1 Chitty's Pl. 164 and note 3, 499, note 1, 488.

On the issue joined on the plea of non detinet, Dowe could introduce evidence of title in himself, inconsistent with that of the plaintiffs in replevin, without regard to his notice of such matter of defence, because such evidence would be contrary to, and would tend to disprove the plaintiff’s averment of title in himself, which he must aver and prove in order to recover; but under the plea of non cepit, without a special plea or notice of property in the de> fendant, such evidence would be inadmissible. rlhe plea of non detimet in the District Court, necessarily put in issue tbe property of Gray & Co. in the goods, and without proof of such property, they should not have obtained a judgment in their favor. But this property in the goods does not necessarily imply an absolute and exclusive ownership, because, if it were otherwise, no person except the owner of property could maintain replevin for them, where they are wrongfully detained, and we all know that this form of action is intended and used by persons having a special property in goods, the absolute ownership of which is in another. Such a right would be sufficient in trover or trespass (1 Chitty's Pl. 151, 168-9); and our statute (chap. 119, sec. 2) gives an action of replevin in all cases where an action for personal property, wrongfully taken, can be maintained. Right to the possession and dominion of the goods and chattels for the time, is all that is essential. Rogers vs. Arnold, 12 Wend. 36.

Looking into all the facts of the case, it is not to be doubted that the only right which could have been determined between the parties to the action of re-plevin, was that secured to Dowe by the mortgage, and by. him assigned to Gray & Co., to the extent of their debt. Now this was only a right to possess and dispose of the goods, until the amount due to them was realized, and thus their priority in payment secured ; but after this was done, Gray & Co. could have no right to the possession or control of any portion of the goods which remained after their debt .was satisfied, so that the right of possession and disposal which may have enabled them to recover in re-plevin, would cease and determine, by the satisfaction their demand by a sale of enough of the goods that purpose, before the commencement of the pr8gent action of trover.

j.j. -0 no^. pg (Jenigd, that any matter that has been once judicially settled and determined, cannot again be the subject of controversy between the same parties or their privies. Nemo débet bis veosa/ri, pro umo ei eod&m omisa. “ The judgment of a court of concurrent jurisdiction, directly vpon ike point, is as a plea, or bar, or as evidence conclusive, between the same parties, upon the same matters directly in question in another court.” Duchess of Kingston's case, 20 Howell's, 538; Etheridge vs. Osborne, 12 Wendell, 399; Young vs. Black, 7 Cranch, 567. But although a former judgment is generally taken to be prima facie, conclusive as to all questions which could be determined under the pleadings, yet this may be rebutted by clear evidence of a contrary character, as where a particular subject is shown not to have been in fact embraced in the former decision. Goodard vs. Selden, 7 Conn. 521.

The former verdict is “ donclusive as to the subject matter of the suit, and any matter particularly put in issue, and foimd by the jury. And it will not be competent for a party in any other action to deny or plead anything to the contrary of what has been so found and adjudicated.” Arnold vs. Arnold, 17 Pick. 4-9. In the same case, the learned judge (Putnam), in his opinion (p. 13), says: “We must therefore as-eértain in every case, when judgment in a former action is pleaded in bar, precisely what was judicially settled in the former action, and what was the cause of that action, and what is the cause of the action to be tried.” The rule that the operation of the estoppel must be confined to the particular subject matter cided in the former suit, is ably discussed by Lord El-lenborough, in the case of Outram vs. Morewood, 3 East. 346; by Mr. Justice Marcy, in Jackson ex dem. Genet vs. Wood, 3 Wend. 27; and by Chief Justice Parker, in Standish vs. Parker et al., 2 Pick. 20; in the notes to which last mentioned case will be found a collation of cases upon the subject. We must therefore look to the record of the proceedings in replev-in, in the District Court, to find what was found and adjudicated in that case, in order to determine how far the plaintiff in the present action (Dowe) was es-topped or concluded by it; for it is laid down by Lord Coke (Coke on Litt., vol. 3, p. 432) that “when the verity is apparent in the same record, then the adverse party shall not be estopped to take advantage of the truth; for he cannot be estopped to allege the truth, when the truth appeareth of record.”

Now the verdict of the jury in the replevin suit only found that the defendant “ did unlawfully detain the goods,” and was entirely silent on the subject of property or ownership; and the judgment rendered by the court only decided the right to retain the goods. How can we conclude from this verdict and judgment that the ownership, or subsequent right to possession, or control of these goods, or anything beyond the mere right to retain c/r possess the goods at that time, was adjudicated or settled thereby ? If the plaintiff in that action was satisfied with such a verdict and judgment, we are not at liberty, in this case, to review or interfere with it, but we must ascertain the precise matter decided as it appears by the record.

Most certainly the verdict in replevin did not embrace the whole issue submitted, for it did not find in w^om ^ie property was, and an unlawful detention by the defendant by no means establishes the right of property in the plaintiffs. As was said by Chancellor Walworth, in Bemus vs.Beckman, 3 Wend. 672, “this finding may be true, and yet the title might be in some person other than the plaintiff.” So also in Boynton vs. Page, 13 Wend. 425, where the verdict in replevin was that the defendant “ did take and detain the goods.” Mr. Justice Sutherland says, “this verdict is undoubtedly defective, and leaves the question of title to the property undisposed of.”

We think the learned Judge who tried the case, correctly understood, and expounded the effect of the verdict and judgment in replevin, and that the right of possession at that time merely, was adjudicated, leaving the question of property entirely untouched-Hence the plaintiff in this action was not precluded from showing such right in the goods as would enable him to maintain his action.

2. As to the effect of the judgment in the garnishee proceeding in favor of Loder and others, and against Wall, so far as it could affect Do we. It is true that Dowe was a party to the record in that proceeding, having been summoned as a garnishee of Crampton & Osborne, but it is not true that he was a party to the issue joined and tried between Loder and others, the plaintiffs, and Wall, his co-garnishee. Under section 36, of chapter 112, of the Eevised Statutes, an issue made up between Loder et al. and Wall, the answer of the latter, as garnishee, not having been deemed satisfactory by the plaintiffs. The trial of this issue resulted in a verdict and judgment against Wall; but what the evidence submitted to the jury was, or whether any except the garnishee’s answer, or what the nature of Wall’s indebtedness to Crampton & Osborne was, did not appear on the trial below. Non constat that Wall was not indebted to Crampton & Osborne, or had property of theirs in his hands, independent of any transaction in which Dowe had an interest. ' '

It did not appear whether Emmons or Dowe had been called upon to answer as garnishees, and we do not see how either of these garnishees ought to be • concluded by a judgment against the other. Neither was examined as a witness, nor had either a right to examine witnesses in the trial against Wall. In fact, they may be considered as much strangers to the verdict and judgment against Wall as if they had never been summoned as garnishees at all. Suppose that the plaintiffs in the attachment proceeding had not summoned Dowe as a garnishee, but had proceeded against Emmons and Wall, could it be claimed that Dowe would be estopped ? We think not, because he would not be a party to the case, and he could not be deemed & privy. So far as Wall could claim any right to the possession of the goods, he was not in privity with Dowe, because the claim of the latter was adverse to that of Gray & Co., through whom Wall claimed. It is true, the question may have been whether the goods or their proceeds, in Wall’s hands, were the property of Crampton & Osborne or of Gray & Co., under whom Wall claimed; and if that were shown to have been the question upon which Wall’s liability was determined, it might give rise to an es-toppel as against Gray & Co., because here there is a privity ; but we are at a loss to discover why Dowe could not, In another suit, establish a right to .the goods paramount to that set up by either Crampton & Osborne’s creditors, Gray & Co., or Wall, if such were the fact.

But we cannot tell from the record of the garnishee proceeding, nor from the evidence in the Circuit Court what the judgment against Wall was based upon, whether for the goods in question, placed in his hands by Emmons, and determined or found to be subject to the payment of Crampton & Osborne’s creditors, or whether it was for other goods or property of Cramp-ton <fe Osborne in Wall’s hands, with which neither Gray & Co. nor Dowe had any connection, and in the absence of all evidence on this subject, we think the proceeding against the garnishees must be taken to be in severalty against each, and a judgment against one of them ought not and cannot operate as an estoppel against either of the others.

From the view which we have taken of the case thus far, it follows that nothing appeared from the record of the replevin suit, nor from the garnishee proceeding, which could preclude Dowe from asserting his right to the goods in the present action; and it remains to enquire whether. under the assignment of a portion of the mortgage, with a right of priority of payment to Gray & Co., they were authorized to dispose of any more of the goods than became necessary to the satisfaction of their claim of $3,900 and expenses ; and in this connection, whether the acts of Waldo, as agent or attorney for Dowe, were such as to affect Dowe.

The power to take possession of the goods at any time, and to dispose of them after a certain notice of sale, conferred upon the mortgagee, Dowe, by the terms of the mortgage, was transferred by the assignment to Gray & Co., so far as it was necessary to enable them to realize their debt by a sale of the goods, and if it required the disposition of the whole goods to mate the amount, they could dispose of the whole, because they had a priority in payment secured to them ; but when the object of the assignment was accomplished, when the debt of Gray <fc Co. with the expenses incurred by them in the sale had been satis,fied, if any portion of the goods remained unsold, Dowe was entitled to a return of them, and Gray & Co. could have no just claim to them.

It has been insisted by the plaintiff in error, that by the assignment to Gray Co. they became the mortgagees of Day, and it was their duty, under the power of sale, to sell the whole goods, or so much thereof as would pay the whole mortgage debt. We cannot believe that this is a correct principle. There is nothing in the assignment that would show an intention on the part of Dowe to relinquish his right to possess and dispose of whatever of the goods would remain after the payment of Gray & Co.’s debt. The assignment to them was only of a part of the mortgage debt, and to that extent they may be said to have become the mortgagees of Day; but what became of the residue of Dowe’s interest in the mean time? So far as that residue was concerned, Dowe continued to be the mortgagee of Day, and responsible to him, after the whole mortgage debt should be paid, if any surplus remained.

The transfer of any distinct part of the indebtedness secured by mortgage, carries with it the mortgage pro tanto, and a satisfaction of such part extinguishes the mortgage, so far as it pertains to the part so transferred and satisfied, leaving it operative in regard to the amount remaining unpaid.

When Gray & Oo. realized their claim, they had no right to retain the surplus goods for any purpose, because their interest was extinguished. Ray was not entitled to such goods, because the whole mortgage debt was not satisfied, and Dowe still held the unsatisfied part of the debt to which the mortgage was incident, and by virtue of the mortgage, and under the terms of his assignment, he alone was entitled to the surplus goods, after the payment of Gray <fc Co.’s claim. If, thereafter, the goods were sold by the plaintiff in error under his direction, as the attorney of Gray & Co., such sale would be a conversion of the goods.

The case of Charter vs. Stevens, 3 Denio, 33, bears a strong analogy to the present case. There, the mortgagee of certain personal property, after default in payment of the mortgage debt, took possession of the property, and proceeded to dispose of it to satisfy the amount due. Among the property was a horse, which was sold, together with all the property, at auction ; but before the sale of the horse, enough had been realized from the sale of other parcels of the property to pay and satisfy the amount due to the mortgagee. The mortgagor brought an action of trover for the property; but on the trial, he confined his claim to recover to the value of the horse sold. After a verdict for the plaintiff, a motion for a new trial was made, and in refusing to allow a new trial, Mr. Justice Beardsley, in speaking of the mortgagee having sold enough of the property to realize his debt, before he sold the horse, says :

“ This he had a right to do; but when his debt was thus paid, all right to the residue of the property was necessarily extinguished, and the power to sell became, ipso facto, void. For what honest purpose could the mortgagee claim any right to the property then remaining unsold, or proceed further under the power to sell ? His debt was paid.”

It is urged by the plaintiff in eiror, that Charter vs. Stevens is not in point, because, in that case, the action was by the mortgagor, and the whole mortgage debt had been paid before the sale of the horse, while, in the present case, the relation of the parties is different, and the whole debt secured by the mortgage was not satisfied by the sale of the goods. The distinction thus sought to .be established is more specious than sound. The only right to interfere with any portion of these goods by Gray & Co., or their attorney, was that acquired by the assignment of a portion of the mortgage debt, and their control of the goods could only extend to the payment of that portion of the debt, and when this was accomplished, their control of the property, and their power to sell any other portion of it, was terminated. It could be no answer on their part, that the whole debt was not paid, for this was none of their concern. Such an answer might be apt to Kay; but so far as Dowe was interested, he was the sole person in whom the control of the goods remained, and he yet held the right to dispose of them until his debt also should be paid, and neither Ray nor Gray Co. could deprive him of it. But it was claimed by the plaintiff in error, that he was justified in causing all of the goods to be sold, because Mr. Waldo, as the agent of the defendant in error, assented thereto, and authorized the sale; and if the agent had authority in the premises, it is unquestionably true in law that his acts would bind his principal, as fully as would the acts of the principal himself. For instance, if the agent had full and absolute control in the disposition 0f the goods, and assented to their being sold, by agreeing verbally or in writing, that the sale might be made, or if he stood by, and, without objection, permitted others to take control and dispose of the goods, the law, in the first case, would consider his consent to the sale equivalent to the consent of his principal, and in the other case, his conduct in silently allowing another party to exercise control over the goods, inconsistent with the right or title of his principal, upon which tacit permission that other party has acted, and the retraction of which tacit permission would, do an injury to the third party acting upon it, would conclude the principal as effectually as if he (the principal) had been present, and had himself acted. “ Quifacitper alivm,facit per se? An estoppel m pads, or by the conduct of a party, may, for this reason, be created as effectually by the acts or conduct of the agent as by those of the principal; for the agent is esteemed in law but the medium through whom the principal acts.

It is important, however, that the doings of the agent should be within the scope of his authority; for if not necessarily embraced within the authority given to him, his acts or conduct will not affect his principal. It is true, there are - some exceptions to this general rule, where the agency is general, and the acts are not in strict conformity to the authority, yet binding; but it is not necessary to discuss the distinction at present. The authority of an agent may be expressed or implied, general or special; but in all cases, the power to act must be ceded to, or conferred on him in some manner, and the party who avails himself of the act of the agent, must prove the authority under which the act is done. Paley on Agency, 309.

In some cases, where the authority is given by power of attorney, or where it must be in writing, the instrument should be produced ; but in other cases, it is enough if it be shown that a parol authority was given, or that the principal had permitted the agent to act in that capacity, and has recognized him as such agent. Where the agency sought to be es tablished is a particular instance, it must be shown that authority was given in some form.

In the case of Lightbody vs. North American Ins. Co., 23 Wend. 18, to which we have been referred, Iiayner was the general agent for the insurance company, and in the particular transaction, acted within the general scope of his authority in taking risks. The existence of an authority to act was not denied ; but the extent of that authority, and whether it empowered him to take the risk in question, was disputed ; and upon this, Mr. Justice Bronson says : “ The question is not so much, what authority the agent had, in point of fact, as it is, what powers third persons had a right to suppose he possessed, judging from his acts, and the acts of his principals.” Of course, the acts of recognition of the principals, would be as valid, as authority, as would be an express concession of power; but the case does not hold that in the absence of these acts of recognition, the power of the agent was to be judged of by third persons by his acts, and the learned judge evidently had reference to the particular’ powers possessed by the agent, and whether really they embraced the issuing of the policy sued upon or not, an authority of some kind being conceded in a former part of bis opinion.

justice Cowen, in the case of the North River Bank vs. Aymar, 3 Hill, 265, in the examination of the subject of agency, and of cases in which the improper exercise of the delegated power by the agent will nevertheless bind the principal, assumes throughout, that an authority of some description has been given or recognized, and then proceeds to discuss the effect of it.

Chief Justice Savage, in Andrews vs. Kneeland, 6 Cowen, 357, and afterwards in Rossiter vs. Rossiter, 8 Wend. 498, comments on the powers of an agent, but takes it for granted, in every instance, that the relation of principal and agent does in fact exist. So, also, in The Commercial Bank of Buffalo vs. Kartwright, 22 Wend. 360, Senator Verplanck says :

“ Bartow, as appears in the evidence, was entrusted by Barker with the certificate of this stock, for the purpose of borrowing money on its security. The certificate was accompanied with such an authority to transfer (now presuming that authority to be valid) as would hold out Bartow to any one to whom he might apply for a loan, in the character of an agent, having full right to transfer, or to substitute some other person as the attorney for that purpose. The, precise use Bartow was expected to make of the stock and the different use he may have actually made, were nothing to the purpose, as against those who acted upon the faith of the general authority entrusted to the holder of the certificate,” &c.

He then cites a passage from Story on Agency, to the effect that when an agent is held out to the public as such, his acts will bind the principal, although Re may depart from secret instructions in dealing -with third persons. This is incontrovertible; but here, again, we find the fact of cmthority existed.

Mr. Phillips, in his work on evidence (p. 103), says: “ The fact of the agency must be first established before the declarations of a supposed agent can be received. In Scott vs. Crane, 1 Conn. R. 255, to let in proof of the acts or concessions of an agent, it was held necessary that the agency should be first proved. This might be proved in a variety of ways, as, for instance, by showing his acts as agent for the same principal, in other and contemporaneous matters, from which a general authority might be inferred.

Judge Story says : “ If a person should authorize another to assume the apparent ownership or right of disposing of property in the ordinary course of trade, it will be presumed that the apparent authority is the real authority. Story on Agency, sec. 93. The application of this sound rule of law in the present case would be, that if Dowe had given authority to Waldo to assume or pretend that the property was at his control, and subject to be sold, or otherwise disposed of by him (Waldo), it would make no difference, so far as third persons were concerned, that Dowe had not in fact, or in reality, given Waldo any such power, because, by his own act in such a case, Dowe would have enabled Waldo to impose upon innocent third persons, and whenever the principal or third parties must suffer, under a state of case like this, of which we now speak, the law very properly confines the evil consequences to the principal, who, by his acts, gave the agent an opportunity to practice his deception. Story on Agency, sec. 56, 127, 443. But before any liability could attach, there must be authority to do something shown, and in the case put by Judge Story, the authority given was to assume apparent ownership, after which will follow the construction of the law, to be put upon the acts of the agent thus apparently clothed with the mdicia of property.

In the case of Williams et al. vs. Mitchell, 17 Mass. 98, the goods were purchased by one Allen, by means of an order over the signature of the defendant, which was shown to be a forgery. The plaintiffs had refused to let Allen have the goods without an order, and afterwards Allen presented the forged order and obtained the goods. The defendant was a merchant at Bridgewater, and it was shown in evidence, and found by the special verdict in the case, that Allen was the general agent of the defendant for the purchase of merchandise, at the time the goods were delivered. Chief Justice Parker, in giving the opinion of the court, holds that the defendant was liable, inasmuch as Allen was a general agent, and says : “ They (the plaintiffs) trusted to the fact of authority rather than to the evidence of it.”

On the subject of Waldo’s agency, the circuit judge charged the jury that it was their duty to examine the evidence “ carefully, and determine whether Waldo was so permitted or authorized to act by Dowe, and so become his agent for the sale of the goods. If you do not find that he was so authorized to act, then any direction or permission which he may have given to sell the goods, no matter how express or explicit, would not bind Dowe. But if he was in fad authorized by Dowe to sell the goods, then any agreement or direction on his part would be the agreement or direction of the principal, and would bind him.”

The question of power was thus submitted to the jury, and we can discover nothing objectionable in the charge so given. It was left to the jury to find a permission or authority to the agent, and the language afterwards used — “ but if he was in fact authorized by Dowe ” — is not deemed by us improper, nor could it mislead the jury: it was equivalent to telling them that if, Waldo really had authority, either express or implied, from Dowe, to act as his agent, then his acts would bind Dowe. This was correct; and, indeed, the whole charge on the subject of the agency of Waldo, is a correct and concise exposition of the law applicable to that branch of the case.

From the bill of exceptions, we find that immediately after the charge had been given to the jury, the plaintiff in error excepted to certain portions of the charge, which exceptions were noted, and that on the morning of the next day, at the opening of court, and before the jury had given their verdict, by the consent of the court, a further exception was taken to the whole charge. We have not felt ourselves called upon in the present case, to say whether the plaintiff in error should be confined to the particular exceptions taken and noted when the jury were charged, or not, having preferred to examine the points which we deem important, and properly presented by the whole case ; but we take occasion to say, that the particular exceptions relied upon ought to be distinctly set forth in the bill of exceptions, as having been taken at the trial, and if the exception relate to the charge of the court, it should be taken at such time as would afford to the court who tries the case, an opportunity of correcting any mistakes or errors which it may be satisfied of, by giving the proper instruction to the jury upon the point excepted to.

The rule of damages in this case is, or ought to he, the value of the surplus goods sold by Wall, after the amount of Gray & Co.’s demand and expenses had been realized. The whole goods were sold for $6,200 by Wall; but it is not shown by the evidence contained in the bill of exceptions, what amount of goods were sold to satisfy the claim of Gray & Co., nor what the value of the surplus goods really was. That the stock was sold for a considerable sum below the price paid to Crampton & Osborne (or agreed to be paid) by Do we, is apparent, but whether the depreciation was occasioned or suffered in the sale of that portion of the goods sold to satisfy Gray & Co., or in the sale of the residue, is left to conjecture.

It may be that the judgment rendered against Mr. Emmons is exorbitant and oppressive ; and if this be the case, and were we furnished with the opportunity of relieving him, we would very promptly do so, but there seems to have been no instruction upon this subject of damages asked for by the defendant, and as we do not know what the charge of the court below was in this respect, we must presume it was correct and proper, inasmuch as no error is predicated upon it.

Upon the whole, we are of the opinion that there is no error in this case, and the judgment of the Circuit Court is therefore affirmed.