Torry v. Holmes , 10 Conn. 499 ( 1835 )

The opinion of the Court was delivered by

Huntington, J.

Several exceptions are taken to the proceedings in the court below, on the trial of this cause, which are now to be examined. The defendants claim, that the judge at the circuit, omitted to charge the jury, on points made by them, and which were material ; and that the instructions which were given on other points, were erroneous.

1. The jury were informed, that for all the advances made to Holmes, for the use of the defendants, under the letter of credit given by the plaintiff, on the written request of James- & Caswell, the defendants were prima facie liable as the principal debtors, unless it satisfactorily appeared, from the other evidence in the case, that the credit was in fact given, as claimed by the defendants, to James & Caswell. It is insisted, that this direction was erroneous ; that it proceeded upon a misconception of the legal nature of the written communication from the plaintiff, to Thomas, at Birmingham ; that this paper was treated as a letter of credit, and that the charge was founded upon this hypothesis; — that it was not a letter of credit, nor in the nature of one, inasmuch as the plaintiff’s house in New- York, and in Birmingham, though called by different names, consisted of the plaintiff alone ; — that the letter addressed to Thomas, was but an order, drawn by the plaintiff on his own agent, who had no credit to give, and who was bound to execute it.

We should feel constrained to say, (if the decision of the case rested upon it,) that the defendants are not at liberty to insist upon this objection, in this Court, even were it well founded. It has been repeatedly decided, by us, that upon a motion for a new trial, we will not allow points of law to be discussed, which were not made, or which were waived, in the court below. We adhere to these decisions. The rule which they establish, is a salutary one, essential to the preservation of the rights of parties, and to the due administration of justice. We refer to the rule adopted by this Court, in 1826, (6 Conn. Rep. 327.) and to the cases of Lyon v. Summers, 7 Conn. Rep. 399. Russell & al. v. Stocking & al. 8 Conn. Rep. 236. It appears to us, that the argument now addressed to us, is designed to obtain a second trial of a question of fact, rather than the revision of matter of law claimed and relied on by the defendants, at the trial. Throughout the whole motion, the letter of the plaintiff to his agent in England, is treated, by both parties, as a letter of credit. The plaintiff and defendants alike consider and insist upon it as such. Their respective claims were founded on this supposition. The defendants did not call the attention of the judge to this instrument, in any other view than as a letter of credit; nor was he desired to distinguish it from an ordinary letter of credit, because the plaintiff’s house in England and in New- York, was composed of one and the same individual. On the contrary, they and the plaintiff united in giving to it the character, qualities and name of a letter of credit; and in accordance with this view of its legal nature, it is to be presumed, that the plaintiff offered thetestimony(which was received without objection,) of two respectable dealers in letters of credit and exchange in New- York, familiar with and largely interested in the mercantile intercourse and business transactions between the United States and Great-Britain, that said letter of credit is dralwn in the usual form, and that the established usage would justify the person giving it, or to whom it is addressed, and who gives credit on the faith thereof, in looking to the responsibility of the person who takes such letter of credit, and obtains the goods or credit under the same, asthe person liable for any advances or purchases made on the faith of such letter. From an inspection of the record in this case, we cannot doubt, that both parties concurred in the opinion, that this was a letter of credit, in the ordinary acceptation of that term, and that both consented and insisted, that the judge, at the trial, should so treat it. We think that we should not administer justice according to law, if we were to permit the defendants to except to a charge, which was made in conformity with the claims of both parties, as to the legal nature of the instrument, which now, for the first time, the defendants are anxious to controvert. It seems to us, that the view now sought to be taken of the letter of the plaintiff to his agent in England, has occurred to the defendants, since the finding of the jury against them on the matters of fact in controversy ; and that it would be a reproach to the law, to permit them, under the circumstances disclosed in the motion, to present it for our consideration. If by mistake, they took an incorrect view of it, at the trial, their remedy to correct that mistake must be presented in another form.

If, however, the objection now taken, was open to examination and revision, we should arrive at the same result, as to the correctness of the charge to the jury, founded upon it. We think, that whether it be considered as a proper letter of credit, or a mere order to afford the facilities which it directs the agent of the plaintiff to furnish, the opinion of the judge is sustained, by well settled principles and adjudicated cases. It was received, by one of the defendants, as a letter of credit; — it was used as such, by him, for the benefit of himself and his co-defendants; and all the advantages which it was contemplated would result from it, to the defendants, in fact followed from it. It had the precise effect designed by the parties, when it was written, delivered and received. It was taken, by Holmes, to the person to whom it was addressed, and by means of it, goods and money were furnished to him, to the amount which he desired. Whether, therefore, it be called by one name or another, — a letter of credit, or an order, — it was written to effect a single object; and it fully answered the purpose designed. The name by which it should be called, cannot alter its legal character, or give to it a different construction from what it would otherwise deserve. The motion states, that it was admitted, advances were made to one of the defendants, (Holmes) for the joint benefit of himself and partner, upon the credit of this letter or order : and it is a familiar principle, that in the absence of all evidence to the contrary, it is a legal presumption that the individual who purchases goods or borrows money of another, is the debtor for them, and becomes prima facie responsible for them. It is unnecessary to cite authorities in support of a doctrine so well established, and so consonant with justice and equity. In the case before us, the goods were purchased and the moneys advanced, at the request and for the benefit of the defendants. The note addressed by James & Caswell to the plaintiff, requests letters for Holmes, that he may procure his machinery. The letter of the plaintiff to Thomas, introduces Holmes to the latter, as one of the firm of Holmes & Hotchkiss, who is about to visit Birmingham, and transact business relative to his manufacturing concerns in the United States — that he intends to examine and procure machinery, and requesting Thomas to facilitate his business, and to accept his drafts to the extent specified. By means of this letter, the advances were made to Holmes; and we cannot doubt, that for such advances, upon this letter, he and his partner were, prima facie, liable. This is precisely the instruction of the court to the jury, on this point; and it was left to them, as a matter of fact, to find, whether, from the other evidence in the case, the credit was in fact given to James &. Caswell, and not to the defendants. If they should so find, the presumption of the primary liability of the defendants, would be rebutted, and they would be entitled to a verdict. In no other way, consistently with principles of law or equity, could the respective claims of the parties, arising out of the facts, have been presented to the jury.

It is, however, claimed, that the prima facie liability of the defendants, as principal debtors, is rebutted, by the direction, in the note of James 6p Caswell to the plaintiff, and in the letter of the plaintiff to his agent, at Birmingham, to forward the invoice of the goods and the bill of lading, to James Cas-well. We do not think this claim is well founded. Neither of these instruments furnishes the slightest evidence, that James Sp Caswell had any interest in these goods. The shipment to them, was not inconsistent with the liability of the defendants as principal debtors. It might, with propriety, have been made to them, as they were the sureties of the defendants for the advances made ; and an additional reason for adopting this course, is inferable from the facts, that James dp Caswell were the agents of the defendants — they resided in New- York, the port at which the goods would arrive ; and the defendants living in the interior of Connecticut, would, from motives of convenience, desire that the goods should be consigned to some person residing at the port of delivery. Hence the peculiar fitness of the language used by James dp Castcell, in their letter to the defendants of August 27, 1832. “ The balance of your goods will probably be here in a day or two, and will claim our attention by way of entry and forwarding.”

The case of Paterson v. Gandassequi, 15 East 62. and that of Addison v. Gandassequi, 4 Taunt. 574. have been cited, by the defendants, as favouring the claim now under consideration. We have examined them, and are unable to discover, that they furnish any support to the defendants’ case : And we refer to them, not so much for the purpose of pointing out the obvious distinctions between both of them, and the» present case, as that it may appear we have not overlooked them» in our deliberations on this subject. In the case first cited, the court recognize a familiar principle, which does not relate to the point in question — which is, that when the credit is in fact given to an agent, with the knowledge that he is in truth but an agent, and acts for a known principal, resort cannot be had to the principal. The rule for a new trial, was made absolute, that the alleged facts, of knowledge by the plaintiffs that the defendant was the principal, and that the plaintiffs had elected to take the agent as their debtor, might, with more certainty,. be ascertained. In the present case, the point in controversy was, whether credit was given to the defendants, or to James - 6)' Caswell; — and that was left, as a matter of fact, to the jury. In the case last cited, it was proved, that the goods were bought, by the house of Larrasabel Co., on their own credit and account; and it was submitted to the jury, to say, whether they acted as brokers, or not; — and the jury being of opinion that the goods were sold to them as principals, found a verdict for the defendant, which the court refused to disturb. In that case, the question of fact, in what character Larrasa-bel Sf Co. acted, whether as brokers merely, or as principals, was left to the jury, under all the circumstances, to determine. In the case before us, the question, whether the credit was in fact given to James cCasioell, was, in like manner, submitted to the jury, upon the whole evidence and in each case, we think the question was properly left for their decision. So far as the cases to which our attention has been called, are applicable to the present case, we think they sustain the charge given to the jury, at the trial.

2. The defendants asked the court to instruct the jury, that ■as the goods and money furnished to Holmes in England, were afterwards charged on the books of the plaintiff in New-ITork, to James Caswell, and payment requested, in the manner stated in the motion, it furnished conclusive evidence that the credit was not given by the plaintiff to the defendants, as original debtors, and James Caswell as sureties, but to James Sg Caswell alone, as original debtors therefor. This instruction, the court refused to give ; and we think this refusal is justified, by well established principles. Indeed, the counsel for the defendants have not attempted, in this court, to support the claim for such an instruction. It was properly abandoned ; — for it is too clear to admit of argument, that those facts were open to explanation. They might all exist, and yet the circumstances connected with them, be such, as to rebut any inference of the existence of the principal fact designed to be drawn from them. Is is, however, urged, that they made James Caswell, grima facie, the principal debtors to the plaintiff, (if they expressed no dissent) without reference to the question, who were primarily liable ; and that the jury should have been so instructed. It is a sufficient answer to this claim, ¡to say, that no such instruction was asked. “ It surely can be ' n° Sroun<^ ^01 a new that the court below omitted to give to the jury, upon a point of law which might arise in the cause, where neither party requested it.” We do not sit here, to suppott and sustain objections not made at the trial. “ It is sufficient for us, that the court below gave no erroneous directions. Should any point fairly presented by the evidence, be deemed material, by either party, it is competent for him to' demand the opinion of the court upon it. If he does not, it is waived.” The claim now made, supposes it to be the duty of the court, to suggest points of law for the benefit of the parties, though never thought of by them, nor controverted. We do not think any such duty is imposed upon us, by the constitution and laws under which we act. “ The court cannot be required to do more, in ordinary cases, than to express an opinion upon points which the parties themselves make at the trial*” Pennock & al. v. Dialogue, 2 Pet. U. S. Rep. 15, 16. Alsop v. Swathel & al. 7 Conn. Rep. 500. It does not appear from the motion, that the plaintiff denied, that the facts stated as the ground of this exception, furnished prima facie evidence, that the credit was given to James Sp Caswell, as original debtors. We do not know, that there was any controversy between the parties, as to this matter. It may be, and such is the fair presumption, that the jury understood both parties to admit, that upon these facts, they were at liberty to find James Sp Caswell to have been the original debtors, unless they were satisfied, from other evidence in the case, that no such indebtedness existed. On what principle, can we be asked to send this cause to another jury, when there was no error in refusing to give the instruction asked ; — and when we are not informed, that the claim, as now made, was resisted, by the successful party ?

3, The court below, was further asked to instruct the jury, that upon the facts proved and admitted, as stated in the motion, the law was so. that the plaintiff had thereby constituted James Sp Caswell, his agents, to receive the money due for said advances; and that the remittances made by the defendants to James Sp Caswell, on that account, discharged the defendants from all liability to the plaintiff. This instruction the court omitted to give, but left it to the jury to decide upon the evidence, in case they should find, that the defendants were the original debtors to the plaintiff for said advances, whether the plaintiff had so conducted, as to constitute James Sf Castcell his agents to receive payment from the defendant, and thereby absolve them from liability to the plaintiff.

We do not perceive any error, in refusing to give the instruction which was asked, nor in the instruction which was given. The question to be decided was, whether an agency to receive the money, was created, by the conduct and acts of the parties. This was a mere matter of fact, depending upon all the evidence in the case-and as such, was properly left to the jury_ who alone were authorized to find it. The only principle of law applicable to this part of the case, was this ; that if such agency was created and did exist, the payment to James <)• Caswell, for the advances made to the defendants, would discharge the defendants from all liability to the plaintiff: — and there does not appear to have been any controversy between the parties, as to the correctness of this principle, or of its application, if the facts found by the jury, should justify such application. The facts proved and admitted, did not furnish conclusive evidence, that James <$• Caswell were constituted the agents of the plaintiff, to receive payment for the advances. It was proper that they should be considered, by the jury ; and they were accordingly submitted to them, with the other evidence in the case, with the direction to find a verdict for the defendants, if, in view of the whole testimony, they should be satisfied, that such agency was created, and existed at the time when payment was made, by the defendants, to James Cas-well.

We are sensible, that the result to which we have arrived) will, probably, occasion a considerable loss to the defendants : and we have been told, that, in its operation, it will bear severely upon them. Whether the loss would be more severely felt by the defendants, than by the creditors of the plaintiff, we do not know, and cannot enquire. Courts of justice have no sympathies to indulge towards either party. The insolvency of James Caswell may, (in the language of Mansfield, Ch. J. in Addison v. Gandassequi, 4 Taunt. 581.) “make an unfortunate difference in the case, as to the consequences to the defendants, but it will not alter the liability.” The legal rights of the plaintiff cannot be varied, by the inability of James 4* Caswell to repay the amount received by them of the defendants. We must administer the law as we find it. In this case, it is with the plaintiff; and we give him the benefit of it.

Our opinion is, that the proceedings in the court below, were perfectly correct; and therefore, the motion for a new trial must be denied.

The other Judges concurred in this opinion.

New trial not to be granted.