Lauchheimer & Sons v. Jacobs

Atkinson^ «T.

1. This is a suit in trover. The question is one involving title to certain personal property. The plaintiffs assert title to certain pants, sack-coats, overcoats, and jackets, set forth in their petition, bearing certain numbers as marks of identification. The burden of proof is upon the plaintiffs to establish their title. It appears that Lane was a traveling salesman of the plaintiffs, and that the plaintiffs, reserving title in themselves, had delivered into the possession of Lane, to be used as samples, the identical goods which are described in the petition. There was no direct evidence as to what disposition Lane made of these goods, except that a part of them were returned to the plaintiffs by him. But it was shown that Lane sold some indefinite quantity of goods to the defendant, that he was known by the defendant to be the plaintiffs’ agent, and that the goods purchased were samples. It was shown by the defendant’s answer, that, when the bail-trover proceeding was commenced, the sheriff took from the possession of the defendant a large number of overcoats and a large number of jackets, and that the numbers thereon corresponded with the numbers on the overcoats and jackets described in the plaintiffs’ petition. Lane testified that the goods described in the petition were the same as those which had been delivered to him by the plaintiffs. ■On the question of the probata corresponding with the allegata, the facts and circumstances above enumerated were sufficient to •carry the case to the jury.

But it was contended that, though the goods may have been ■originally the property of the plaintiffs, yet the plaintiffs had placed them in the hands of their agent, who, under a prevailing and universal custom of the trade, at the end of the season had •sold them to the defendant, an innocent purchaser, and, for that ■reason, the plaintiffs should not be allowed to recover them. It is stated in Clark & Skyles on the Law of Agency, § 69: “ Proof ■of the custom and usage in a particular business can not be sufficient, without anything more, to show that the relation of principal and agent exists, but such proof may be material, when the fact of agency is otherwise proved, or admitted, to show what "the contract of agency was, and to show the extent of the agent’s .authority. When the rights, duties, and liabilities as between an .■acknowledged agent and his principal are in question, or when the authority of an acknowledged agent to do a particular act or make ■a particular contract is in question, an established custom or usage in the particular business or place may be proved and taken into consideration, either for the purpose of construing the contract of ■agency as between the parties, or for the purpose of determining the extent of the agent’s authority; for, unless expressly excluded, such a custom or usage enters into a contract of agency, as it does into other contracts, and also enters into the authority of the agent as respects persons dealing with him. Of course, as between the parties themselves, and as against persons with notice, the principal may, by his instructions to the agent, exclude customs and '■usages, however well established. But such secret instructions can not be set up against persons dealing with the agent without notice of them; for they have a right to assume, in the’absence of notice to the contrary, that the agent’s authority is in accordance with established customs and usages. . .” See also Thompson v. Douglass, 64 Ga. 57. Applying this rule to the case at bar, it appearing from the evidence that Lane was the agent of the plaintiffs, it is competent to inquire into the universal custom of trade for the' purpose of determining what authority Lane had for making a disposition of the personal property in controversy. Only one witness testified on the subject of the custom of trade. His testimony was clear and unequivocal that it was a universal custom that salesmen such as Lane at the end of the season had the right and authority to sell and dispose of samples as was done by Lane in this case. The evidence was itself unequivocal, and there was no contradictory evidence or circumstance sufficient to raise a question of fact for submission to a jury. The testimony uj)on this point clearly made prima facie proof of such a custom of trade as would give Lane, the agent, the authority to dispose of the goods. Under these circumstances, it was for the court to determine as a matter of law whether or not there was proof of the custom of trade. Had the matter been submitted to a jury, the jury could not have found otherwise, because their verdict would have been contrary to the evidence, and the judge would have been obliged to set it aside because no other conclusion could be drawn from the evidence submitted. It is stated in 22 Enc. Pl. & Pr. 410, that “ where the facts and circumstances by which it is sought to establish a usage or custom are undisputed and are such that but one legitimate reasonable conclusion or inference can be drawn, the question whether such usage or custom has been proven is one of law for the court. Under such circumstances it can not be left' to the jhry to determine whether the usage existed’ or what operation or force must be given to it.” Under this view of the case, the court was authorized to reach the conclusion that Lane, the agent, had authority to make the sale. So, if the property had been ascertained to be the same which the plaintiffs had delivered to Lane, the agent, they can not recover, because it further appears from their own proof that under the universal custom a sale of the goods was made by their agent by due authority. It follows, therefore, that the court did not err in granting a nonsuit.

2. Where a party to a suit calls the opposing party to the gtand as a witness, it .is within the discretion of the judge to refuse, on objection, to prohibit the counsel for the opposing party from asking leading questions on cross-examination, and the fact that the court allowed the cross-questions complained of in this case does not show such an abuse of discretion as to authorize the grant of a new trial. Civil Code, §§ 5283, 5290; Cade v. Hatcher, 72 Ga. 359.

3. On the direct examination, a list of goods, which was attached to the plaintiffs’ petition, was exhibited to the witness, and he was asked the question, “whether or not they were the goods bought by him from Lane?” After he was asked this question, further questions were propounded to him on different lines, and finally he was turned over to the opposite side for cross-examination. After the cross-examination, the party introducing the witness again exhibited the same list of goods to the witness, and said: “I will ask you again, Mr. Jacobs, if you will swear that you did not receive those goods?” As will be seen by mere comparison, the two questions are substantially the same. The witness had answered that he did not know whether or not he had bought any of the goods which were described in the petition, and it was not any abuse of discretion for the court to refuse to allow the same question answered again. If additional questions had been asked tending more thoroughly to sift the information of the witness, the court, with some profit, might have allowed them answered; but no additional question was propounded, and we can not assume what other, if any, question was desired to be propounded, and can not reverse the judgment of the court below upon a ruling which was not made. Again, if the defendant had answered that he had bought from Lane the identical goods which were described in the petition, that would not have helped the plaintiffs, because the case really turned against the plaintiffs, not for the want of proper identification of the goods, but on account of the prevailing universal custom already discussed.

4. The manner of examination of witnesses is largely in the discretion of the court, and it is not reversible error for the court to allow counsel, during the examination of a witness, to repeatedly request the court to instruct the witness, nor for the court to so instruct tbe witness, that he need not answer incriminating questions unless be desires to do so.

5. In the bill of exceptions the judgment of the court rendered .against the plaintiffs and their bondsmen for the value of the property replevied by the plaintiffs was excepted to “on the ground that it could not be taken until the matter had been submitted to a jury ••and the worth of the goods proved, and on the further ground that the bondsmen had not been sued, and judgment could not be ■entered against them on a replevin bond without first suing them.'” 'There were no other exceptions to that judgment. These exceptions were not well taken. There was no issue to be presented to a .jury. The bond which the plaintiffs made specified the articles which were taken and the value thereof. The judgment of the •■court was merely upon the uneontradicted state • of facts as presented by the plaintiffs themselves. It was not necessary to institute a separate suit against the bondsmen. See, in this connection, Thomas v. Price, 88 Ga. 533; Waldrop v. Wolff, 114 Ga. 620.

Judgment affirmed.

All the Justices concur, except Pish, G. J., Absent.