57 U.S.

14
16 How. 14
14 L.Ed. 824

HENRY F. TURNER, JAMES F. PURVIS, AND STERLING

THOMAS,
PLAINTIFFS IN ERROR,
v.
JOSEPH C. YATES.
December Term, 1853

THIS case was brought up by writ of error from the Circuit Court of the
United States for the District of Maryland.
The facts of the case are set forth in the opinion of the court, to which the
reader is referred.
It was argued by Mr. Barroll and Mr. May, for the plaintiffs in error, and
by Mr. Johnson, for the defendant in error. There was also a brief filed
upon that side by Mr. S. T. Wallis.
The points on behalf of the plaintiffs in error were the following:
First and fifth exceptions. That the court erred in ruling out the parol
testimony offered, of the contents of the invoice sent to the defendant in
error by William H. F. Turner from Chatanooga.
Second, third, and sixth exceptions. That the court erred in admitting the
testimony to prove the separate contract alleged to have been made by Mr.
Yates with H. F. Turner, &c., as set forth in the statement upon page 34 of
printed record. Cole v. Hebb, 7 G. & J. 20; Davis v. Calvert, 5 G. & J. 269;
Clark v. State, 8 G. & J. 111; Magill v. Kauffman, 4 Serg. & Rawle, 317,
321; Franklin Bank v. Penn. Del. & Md. S. N. Co., 11 G. & J. 28; Gilpins
v. Consequa, 1 Peters's C. C. Rep. 87.
Fourth exception. That the court erred in admitting the evidence of usage
for commission to be charged on advances on shipments made to London,
because the said evidence was irrelevant.
Sixth exception. That the court erred in admitting the evidence of Mr.

Teackle, because it was incompetent testimony, and because it was

irrelevant.
Seventh exception. That the court erred in rejecting the prayers of the
defendants, and in its instructions to the jury, for the following reasons:
1. Because said instructions are vague and uncertain, and therefore
calculated to mislead the jury. 2. Because the first instruction is not
limited to the interview (or subsequent ones) in which the defendants
requested plaintiff's counsel to see Mr. Ward. 3. Because said first
instruction embraces the acts and declarations of Mr. Ward, in the
interview with Mr. Teackle. 4. Because said first instruction directs the
jury that the defendants are bound by the acts and declarations of Mr.
Ward, although he was only retained by H. F. Turner as such, unless such
limitation of retainer was stated to plaintiff or his counsel. 3 Ph. Ev. 359; 1
Greenl. Ev. 197, 199. 5. Because the said Purvis and Thomas, two of the
defendants, were not bound in law by the acts or declarations of said
Ward, if the jury believed the testimony, that said Ward was not their
agent or counsel, and did not claim or profess to act as such with their
knowledge or consent. (Same authorities.) 6. Because, in order to make
the defendants liable for the declarations of said Ward, it ought to have
been put to the jury to find that defendants, although present, heard such
declarations, or were in a position to be able to hear, if so disposed. Gale
v. Spooner and others, 11 Vermont Rep. 152; Edwards v. Williams, 2
How. Miss. 846; Ward v. Hatch, Iredell, 282.
And so far as the second instruction is concerned, that the court erred in
giving the same. Because, 1. The said instruction invades the province of
the jury, by assuming as facts the making of the draft for $5,733, and also
that said draft was drawn as an advance on said bacon. Lewis v. Kramer,
et al. 3 Md. Rep. 294. 2. The said instruction calls upon the jury to decide
a question of law, in leaving them to find what are liens on said bacon.
Plater v. Scott, 6 Gill & Johns. 116. 3. The said instruction requires the
jury to deduct from the net proceeds of sales, the draft for $5,733, without
requiring them to find the fact that said Harry drew said draft, as agent of
William, and had authority so to do, or the facts from which such authority
may be inferred. 4. Because there was no evidence from which the jurors
had the right to infer that the draft for $5,733 was in fact drawn by Harry
as the agent of William, or that said draft was accepted, or paid by the
plaintiff to said Harry, as agent of William, the admission of the payment
of said draft being that such payment was to Harry, in his individual
capacity, and not as agent. 5. Because the principle announced in said
instruction, that if the jury find Harry acted as agent of William in the

transactions after occurring in relation to the bacon at Chatanooga, then

Harry had authority to draw said draft, and William and his property are
bound therefor, is in conflict with the principles of law, there being no
evidence in the cause from which an authority to Harry, to draw and
negotiate drafts as agent of William, can be sustained. The plaintiffs in
error will contend, that the agency of Harry was not otherwise than as
overseer and adviser for William, in slaughtering hogs and packing the
meats, and did not authorize said agent to procure advances, by pledging
the meat before or after its shipment, to Messrs. Gray & Son. And that the
character of the agency was known to the defendant in error from the
beginning. And in ascertaining whether Harry had authority to draw the
draft in question, the court are bound to exclude from their consideration
all the testimony limited to the proof, that Harry acted as principal, and
not as agent, in drawing such draft. Sto. Ag. 87, 251, 390. 6. Because
the advance of $5,733, under the circumstances of the case, was a fraud
upon the sureties in the bonds, if such advance was made upon William's
meat. 7. Because the said instruction does not require the jury to find that
the advance of $12,000 was made in pursuance of the bond. 8. Because
the court erred in allowing the plaintiff below to contend before the jury,
upon two distinct, inconsistent propositions. Winchell v. Latham, 6
Cowen, 689. Beake's Ex. v. Birdsall, 1 Coxe, 14.
Additional objections to the Court's second instruction.
1. Because the court erred in its instruction to the jury, that only half the
net proceeds of the bacon was to be credited to the defendants. The
plaintiffs in error will contend that the whole net proceeds of the bacon
should have been credited to the amount of the advance of $12,000, and
the jury instructed to give a verdict for the amount found to be due by
William H. F. Turner. They will contend that under the instruction, as
given, the jury were bound to find a verdict against the defendants for a
greater sum than was owing by William, the excess being to the extent of
the other half of the net proceeds not credited.
2. They will also contend that, whether the meat belonged to William or
Harry, the $5,733 draft, paid by Mr. Yates, was not a lien on the meat,
because the bill of lading was not indorsed. That there can be no lien
without an actual or constructive possession of the thing intended to be
given in pledge, and that, in the case at bar, Mr. Yates had no such
possession. 14 Peters, 445.
3. In the court's instruction the term liens was intended to embrace the
item of $5,733, under the fourth exception. The plaintiffs in error will

contend that such item was a personal charge against him, to whom the
advance was made, and was not a lien on the meat; and the jury should
not have been instructed to deduct the same as a lien.
The points on behalf of the defendant in error, were:
1. That the parol evidence referred to in the first exception was properly
excluded.
Because notice, at the trial table, to produce the invoice, was insufficient
except under the agreement, and the agreement referred only to papers in
the actual possession of the parties. The agreement rested obviously on
the good faith of the parties and their counsel; and the declaration of the
plaintiff below, that the paper was not in his possession, was prim a facie
sufficient to establish that fact, and exclude the paper from the effect of
the agreement.
Because, even if the notice had been sufficient to justify parol proof of a
paper constructively in the possession of the plaintiff below, the invoice in
question was not so constructively in his possession, having been
forwarded to accompany meat, destined for the Messrs. Gray, and
received by them, and being therefore, by legal presumption, in their
possession.
It will be further argued, that the plaintiffs in error were not prejudiced by
the exclusion of the parol proof, even if it was admissible under the other
proof in that stage of the cause, because it afterwards appeared that the
invoice had been actually transmitted to the Messrs. Gray, and was still in
their possession, which would have made the parol proof incompetent,
even if it had been admitted, under the notice to Yates.
It will further be contended that no prejudice resulted to the plaintiffs in
error, in any event, from the rejection of the proof, because its whole
purpose was to show notice to Yates, that the meat on which he advanced
$5,733 was William Turner's, not Harry's, and the court rightly instructed
the jury, afterwards, that it made no difference, for the purposes of the
case, to which of the Turners the meat in fact belonged.
2. That the plaintiffs in error could under no circumstances be entitled to a
credit, on the bond in suit, of the proceeds or any part of the proceeds of
the shipments to the Messrs. Gray, unless the meat to shipped belonged to
William H. F. Turner; that the proof offered by the defendants in error,
and the admission of which forms the matter of the second exception, was
offered in connection with other direct proof stated in advance, and

afterwards adduced, showing that there was a separate contract with Harry
F. Turner for the shipment of meats and receiving advances thereon,
which separate contract was known to the plaintiffs in error (Henry F.
Turner himself being one of them,) when they signed the bond in suit; that
the defendants in error, with this knowledge, and forewarned of the
difficulties which might result from the two co existing contracts, insisted
neverthless on becoming sureties in the mode proven; that by the very
terms of the bond they constituted Harry F. Turner (one of themselves)
their agent, as to William H. F. Turner's business, and placed him in the
position of deceiving or misleading Yates in regard thereto, and of
managing and shipping the meat as his own or his son'swhich they were
forewarned might happen; that they were thus bound by Harry F. Turner's
action in the premises; that the correspondence between Harry F. Turner
and Yates furnished the only positive evidence of the capacity in which
Turner shipped the meat and asked and received Yates's advance
thereupon, and such correspondence was therefore clearly admissible, for
that purpose, which was the only purpose for which it was offered, and
went directly to the question of the right of the plaintiffs in error to be
credited on the bond with any part of the shipments to the Messrs. Gray.
That the letters of Turner, and the Messrs. Gladsden, who shipped for him
at Charleston, inclosing the bills of lading, and relating to the shipment of
the meat, were part of the res gestae, and bore directly on the points for
which the proof was offered.
That the accounts of sales of the bacon, rendered by the Messrs. Gray, had
been previously spoken of by Robert Turner, the witness of the plaintiffs
in error, and were admissible on that ground, as well as part of the res
gestae.
That the letters of Harry F. Turner to Yates, about the meat, and in regard
to drawing thereupon, had been spoken of by the same witness, and were
admissible, on that score, if on none other.
That the capacity in which Harry F. Turner acted at Chatanooga, had been
proven by Wilkins and James S. Turner from said Harry F. Turner's acts,
and his letters, accompanying his acts and transactions there, were
competent to go to the jury for the same purpose.
3. That the evidence of Mr. Thomas was clearly admissible for the
purpose for which it was offered.
4. That the proof in the fourth exception of the custom in Baltimore to
charge one per cent. on advances upon shipments to London, and that the

plaintiff (below) claimed it, on his advance of $5,733, was admissible,

because the advance of $5,733 was properly made, and the plaintiff being
entitled to charge for it in account was entitled to the usual commission
upon it. The plaintiffs in error themselves, had proven, by the production
of Mr. Yates's letter, that such a per centage was chargeable.
5. That the evidence, as to the invoice claimed to be admissible by the
fifth exception, was properly rejected, for the reasons previously stated,
(No. 1.) and because it was not rebutting evidence, and was inadmissible
at that stage of the cause.
6. That the evidence of Mr. Teackle, sought to be excluded by the sixth
exception, was not only competent in itself, but was rendered proper by
the proof previously introduced by the plaintiffs in error themselves, and
embodied in the same exception.
That the letters between the Messrs. Gray and Harry F. Turner, were
competent proof, because it had been shown that the plaintiffs in error
when they signed the bond, were notified of the existence of the
agreement which these letters constituted, and of which they were the best
proof.
That they were likewise admissible, because the plaintiffs themselves had
previously produced Mr. Yates's letters, referring to the understanding
between Harry F. Turner and the Messrs. Gray, of which the letters here
referred to were the only proof.
7. That under the circumstances of this case, and in view of the relation of
the plaintiffs in error, Purvis and Thomas, to Harry F. Turner, as their joint
obligor and co-defendant, with whom they had taken joint defence, they
were bound by his acts and declarations in the premises. Van Reimsdyk v.
Kane, 1 Gallison, 635; Simonton v. Boucher, 2 Wash. C. C. Rep. 473;
Martin v. Root, 17 Mass. 227; Montgomery v. Dillingham, 3 Smedes &
Marshall, 647; Armstrong v. Farrar, 8 Missouri, 627; 1 Greenleaf's
Evidence, 174; 2 Starkie's Evid. 25; 1 Phillips's Evid. 92.
8. That even if the proof offered and objected to in the second, third, and
sixth exceptions was inadmissible, as against Purvis and Thomas, it was
clearly competent as against Harry F. Turner, and as the objections were
taken, generally, to the admissibility of the proof against all the
defendants, they were properly overruled.
9. That the objection to testimony in the third, fourth, and sixth
exceptions, was too indefinite to be allowed. Camden v. Doremus, 3

Howard, 530.
10. That if the court erred in reference to the instructions prayed or given,
it was in favor of the plaintiffs in error, by rejecting the prayer of the
plaintiff below, which was based upon evidence properly before the jury,
and tending to the conclusion which the prayer adopted.
That the first prayer of the plaintiffs in error was properly rejected,
because it excluded from the jury all consideration of the contract between
Yates and Harry F. Turner individually, as well as of the question whether
the meat in controversy was or was not his individual property; and
because, further, it made the right of the defendants to a credit from the
said meat dependent exclusively on the fact of its belonging to William H.
F. Turner, without reference to Yates's knowledge or ignorance of that
fact, or to the responsibility of William H. F. Turner and his sureties,
under the circumstances, for the acts and declarations of Harry F. Turner,
whom they had constituted their agent in the transaction.
Said first prayer is further defective, obviously, in that it claims credit to
the extent of the whole sale, and receipt of proceeds of the meat, whereas,
in no case could the plaintiffs in error have been entitled to a credit of
more than one half the said proceeds; the sureties on the other bond being
in equal right and entitled to divide whatever credits might appear.
The prayer is likewise improper, because the cause of action being joint,
and the defence and issues joint, it nevertheless asks an instruction that the
jury may sever in their finding, and give to the defendants, Thomas and
Purvis, a credit to which their co-defendant, Turner, is not entitled.
The second prayer of the plaintiffs in error was properly rejected, upon the
grounds expressed in the court's first instruction, it being immaterial
whose attorney Mr. Ward in fact was, or whether he represented himself
to be the attorney of Purvis and Thomas, provided the jury believed, that
in their presence and with their knowledge, he acted for them, and that the
attorney of Yates was referred by them to him, to settle the differences
then pending in regard to the bond.
11. That the rule of court was lawful and governed the case, and the court
properly refused to postpone the swearing of the bailiff and the discharge
of the jury until the signing and sealing of the exceptions. Walton v.
United States, 9 Wheaton, 651; Ex parte Bradstreet, 4 Peters, 106-7;
Brown v. Clarke, 4 Howard, 15.
12. The defendant in error will argue, upon the whole case, that the

agreement of William H. F. Turner to send his shipments to Gray & Son,

to pay off the advance of $12,000, and whatever else he might be allowed
to draw for, was no part of the bond or of the consideration upon which
the plaintiffs in error joined in it; but a stipulation made afterwards to
Yates, not by him, for his benefit, nor that of Turner and his sureties; that
it in no way precluded Yates from making subsequent advances, or
pledged him to appropriate the proceeds of the meat first to the $12,000
loan; but, on the contrary, expressly provided for further advances and
their payment; that whether Harry F. Turner signed himself 'agent' or not
to the $5,733 draft, made no difference whatever, provided Yates accepted
and paid the same in good faith, on a pledge of the meat; that whatever be
the shape of the transactions, it is manifest that the original loan was to
have been made to Harry F. Turner, on the terms of his letters to Messrs.
Gray; that bonds to that effect were drawn with the knowledge of Purvis
and Thomas; that the substitution of William H. F. Turner was only as to
the loan of $12,000, and was made for the benefit of Harry F. Turner,
without the participation of William, who was in Chatanooga, and at the
request of the sureties, against the remonstrance of Yates's attorney, that
Harry F. Turner was agent of William and manager of the whole business,
its property and correspondence, with the privity and at the desire of the
sureties; if he committed a fraud on Yates, or on them, they must bear the
burden, as he was of their selection; and that they are under no
circumstances entitled to have carried to the credit of the bond more than
the amount given by the jury; that it to say, the margin left of the proceeds
of the shipments, after allowing for the usual stipulated advances.
Mr. Justice CURTIS delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of
Maryland. The action was debt on the bond of the plaintiffs in error, the
condition of which was as follows:

Whereas the said Joseph C. Yates is about to lend and advance to William H. F.
Turner the sum of twelve thousand dollars, in such sums and at such times as
the said William may designate and appoint; which designation, and
appointment, and advances it is hereby agreed shall be evidenced by notes
drawn by the said William in favor of the said Harry F. Turner, agent, and by
the latter indorsed, or by drafts drawn by the said William H. F. Turner in favor
of the said Harry F. Turner, agent, on, and accepted or paid by the said Yates,
indorsed by said Harry F.

And whereas the said Harry F. Turner, Sterling Thomas, and James F. Purvis,
have agreed, as the consideration for the said loan, to secure the said Yates the
payment of the sum of six thousand dollars, and interest thereon, part of the
said loan; and the said Harry F. Turner, with Robert Turner and Absalom
Hancock, have entered into a bond similar to this, for the payment of the other
six thousand dollars and interest.

Now the condition of the above obligation is such, that if the said William H. F.
Turner, at the expiration of twelve months from the date hereof, shall well and
truly pay to the said Joseph G. Yates, his executors, administrators, or assigns,
all such sum or sums of money as may be owing to the said Yates, by the said
William H. F. Turner, evidenced as aforesaid, at the said expiration of the said
twelve months, or in case the said William H. F. Turner should fail or omit to
pay said sum or sums of money, at said time, if the said Sterling Thomas and
James F. Purvis, or either of them, shall well and truly pay to the said Yates, his
executors, administrators or assigns, so much of said sum or sums of money as
may then be owing, as shall amount to six thousand dollars and interest, in case
so much be owing, with full legal interest thereon, or such sum or sums of
money as may be owing with interest thereon, in case the same should amount
to less than six thousand dollars, then this obligation to be null and void,
otherwise to remain in full force and virtue in law.

HARRY F. TURNER, [SEAL.]

STERLING THOMAS, [SEAL.]

JAMES F. PURVIS. [SEAL]

The defence was that, seven hundred boxes of bacon had been consigned by
William Turner to Gray & Co., in London for sale, and having been sold, the
whole of its proceeds ought to be credited against the advance of twelve
thousand dollars mentioned in the condition of the bond. The plaintiff did not
deny that the merchandise was received by Gray & Co. for sale, and sold by
them, but insisted that the property belonged to Harry, and not to William
Turner, and so no part of its proceeds were thus to be credited; and that, if
bound to credit any part of these proceeds, there was first to be deducted the
amount of a draft for $5,733, drawn by Harry Turner on the plaintiff
specifically against this property, which draft the plaintiff was admitted to have
accepted and paid.

Upon this part of the case, the district judge who presided at the trial ruled:

10

'If the jury believe that defendants executed and delivered the bond now sued
upon, and that Harry F. Turner, in the transactions, after occurring, in relation to
the becon at Chattanooga, was either the principal in such transactions, or acted
as agent of William H. F. Turner, then defendants are entitled only to be
credited for one half the net amount of the shipments of becon made by them,
after deducting from the proceeds of sales of such bacon all liens thereon,
including in such liens the draft of $5,733 drawn as an advance on such bacon.'

11

This ruling having been excepted to, several objections to its correctness have
been urged at the bar by the counsel of the plaintiffs in error.

12

The first is, that the bond does not show the advances were actually made, and,
therefore, the judge ought to have directed the jury to inquire concerning that
fact. It is a sufficient answer to this objection to state what the record shows,
that, in the course of the trial, the plaintiff, having put in evidence drafts
corresponding with those mentioned in the bond, amounting to $12,000, the
defendants admitted their genuineness, and that they were all paid at the times
noted thereon. The fact that the $12,000 was advanced was not therefore in
issue between the parties, and there was no error in not directing the jury to
inquire concerning it.

13

It is further objected that in his instruction to the jury the judge assumed that
the draft of $5,733 was drawn against this consignment, instead of leaving the
jury to find whether it was so drawn. The draft itself and the letter of advice
were in the case. The draft requested the drawee to 'charge the same to account
as advised.' The letter of advice states: 'I have this day drawn on you at ninety
days for $5,733, being ten dollars and fifty cents per box on 544 boxes singed
bacon, &c.' This was a part of the merchandise in controversy. It was clearly
within the province of the court to interpret these written papers, and inform the
jury whether they showed a drawing against this property. When a contract is to
be gathered from a commercial correspondence which refers to material
extraneous facts, or only shows part of a course of dealing between the parties,
it is sometimes necessary to leave the meaning and effect of the letters, in
connection with the other evidence, to the jury. Brown v. McGran, 14 Pet. R.
493.

14

But this was not such a case; and we think the judges rightly informed the jury
that this draft was drawn against this property. Whether, being so drawn, it
bound the property and its proceeds, so that in this action its amount was to be
deducted therefrom, depended upon other considerations, which are exhibited
in the other part of the instruction. Assuming, what we shall presently consider,
that there was evidence from which the jury might find that Harry, who drew

the draft, was either himself the owner of the property, and so the principal, or
if not, that he was the agent of William, there can be no doubt of the correctness
of this instruction, unless there was something in the case to show that the
owner of the consignment could not bind its subject by a draft made and
accepted on the faith of it. This is not to be presumed; and if the two
defendants, who were sureties on this bond, assert that they had a right to have
the whole of the proceeds of this property appropriated to the repayment of the
advance of $12,000, for which they were in part liable, it was incumbent on
them to prove that the ordinary power of a consignor, by himself or his agent, to
draw against his property, with the consignee's consent, was effectually
restrained by some contract with the sureties, or of which they could avail
themselves. We have carefully examined the evidence on the record, and are
unable to discover any which would have warranted the jury in finding such a
contract.
15

The bond itself contains no intimation of it. And although the evidence tends to
prove that the sureties had reason to expect that bacon would be packed and
sent to Gray & Co., and that, through such consignments, the advance of
$12,000 might be partly or wholly repaid, they do not appear to have stipulated
or understood that William was to have no advance on such property. Indeed,
the real nature of the transaction seems to have been that the bond was taken to
cover an ultimate possible deficit, after the property should have been sold and
all liens satisfied; leaving William, their principal, free to create such liens as he
might find expedient in the course of the business.

16

We are also of opinion that there was evidence in the case, from which the jury
might find that Harry was held out to the plaintiff, by William, as his agent, as
well for the purpose of drawing against this property as for other purposes. The
letter from William Turner to the plaintiff of the 14th November, 1849, and the
agreement of Harry appended to it, tend strongly to prove this. They are as
follows:

17

'CHATTANOOGA, Tenn., Nov. 14, 1849.

18

'MR. JOS. C. YATES:

19

'DEAR SIR: In consideration of the advance of twelve throusand dollars made

me by you for the purpose of packing meats for the English market, I hereby
bind myself to make my whole shipments, of whatever kind they may be, to
your friends in London or Liverpool, Messrs. B. Charles T. Gray & Son, for the
entire season, or longer, till such advance shall have been paid off, together

with any other that I may be permitted to draw for.

20

'I am, dear sir, your most obedient servant,

21

'W. H. F. TURNER.

22

'I agree to see the above carried out in good faith, and bind myself for the due
fulfilment of it.

23

'HARRY F. TURNER, Agent of

24

'W. H. F. TURNER.'

25

It thus appears that further advances to William were contemplated as a part of

the arrangement with him, and Harry, as agent of William, was to see the whole
arrangement carried out upon his personal responsibility. If, as these witnesses
show, Harry was agent for William for carrying out the whole arrangement, and
further drawing was contemplated as a part of it, it necessarily follows he was
his agent thus to draw. It is shown by the correspondence that Harry had the
sole charge of getting the property down to the sea-board from the interior, and
of shipping it; and that he had incurred large debts on account of it; and, finally,
William Turner has not, so far as appears, repudiated his act in drawing, and the
defendants now claim the benefit of a consignment, on the faith of which the
draft in question was accepted.

26

Under these circumstances our opinion is that it was not improper for the judge
to leave it to the jury to find whether Harry was the agent of William, if he
were not himself the owner of the property. Nor do we think these two states of
fact present such inconsistent grounds as ought not to have been submitted to
the jury. It is true Harry could not be at the same time principal and agent; but
it often happens in courts of justice that a right may be presented in an alternate
form or upon different grounds.

27

If one party has dealt with another as an agent, it would be strange if the
transaction should be held invalid because it is proved on the trial he was
principaland e converso. The substantial question, in such a case, is a
question of power to do an act; and this power may be shown, either by proving
he had it in his own right or derived it from another. Of course there may be
cases where the allegations of the parties on the record restrict them to one line
of proof; and there may be others in which the court, to guard against surprise,

should not allow a party to open one line of proof, and in the course of the trial
abandon it and take an inconsistent one. But this last is a matter of practice,
subject to the sound discretion of the court, and not capable of revision here
upon a writ of error.
28

We hold the second instruction, which involved the merits of the case, to be
correct.

29

The other bills of exception relate chiefly to questions of evidence.

30

In the course of the trial the defendants introduced a witness, who testified that
he made out an invoice of the 700 boxes of bacon, and sent it by mail to the
plaintiff, who was the agent of Gray & Co., to whom the property was
consigned in London.

31

The defendants then called on the plaintiff to produce this invoice under the
following agreement:

32

'It is agreed between the plaintiff and defendant in this cause, that either party
shall produce, upon notice at the trial table, any papers which may be in his
possession, subject to all proper legal exceptions as to their admissibility or
effect as evidence; and that handwriting, where genuine, shall be admitted
without proof.

33

'S. T. WALLIS, for plaintiff,

34

'BENJ. C. BARROLL, for defendants.'

35

The plaintiff said the invoice was not in his possession. The defendants then
offered to prove its contents. But the court was of opinion it was to be presumed
the invoice had gone to the consignees in London, who were competent
witnesses to produce the original; and therefore parol evidence of the contents
of the paper was excluded.

36

This ruling was correct. So far as appears, this was the only invoice made.
Every consignment of merchandise, regularly made, requires an invoice. It is
the universal usage of the commercial world to send one to the consignee. The
revenue laws of our own country, and we believe of all countries, assume the
existence of such a document in the hands of the consignee on the arrival of the
merchandise. It was the clear duty of the plaintiff, when he received the

invoice, to send it to the consignees in London. The presumption was that he

had done what is usually done in such cases, and what his duty required. If the
paper was in the hands of the consignees in London, secondary evidence was
not admissible. For it was not within the written agreement to produce papers,
which applied only to those in the possession of the plaintiff; and though the
plaintiff was an agent of those consignees, and seems to have been suing for
their benefit, yet aside from the written agreement they must be treated either as
parties or third persons. If as parties, they were entitled to notice to produce the
paper; if as third persons, their depositions should have been taken, or some
proper attempt made to obtain it. This also disposes of the fifth exception;
because, if the evidence in the cause had some tendency to prove the document
had been retained, the offer of the plaintiff to prove the contraly, and the
election by the defendants to rest their motion for the admission of the parol
evidence upon a concession that the fact was as the plaintiff offered to prove it,
instead of first calling for that proof, must preclude them now from objecting
that the proof was not given.
37

The second exception relates to the admission of certain correspondence

respecting this property between the plaintiff and Harry Turner and Messrs.
Gadsden & Co., of Charleston, S. C., before the property was shipped to
London, and also the accounts of sales of the property, which were introduced
by the plaintiffs for the purpose of showing that they were dealing with Harry
Turner as principal, and under a separate contract with him. We have no doubt
of the admissibility of this evidence for the purpose for which it was offered.
Whether Harry was principal or agent, it was competent and important for the
plaintiff to prove that he was dealt with and treated as a principal; and there
could be no better evidence of it than the correspondence concerning the
transaction. On the trial of a commercial cause such a correspondence is not
only generally admissible, but it is often the highest evidence of the nature of
the acts of the parties and the capacities in which they acted and the relations
they sustained to each other. It must be observed that the plaintiff, in one aspect
of his case, had three things to prove. First, that there was a distinct
arrangement with Harry to ship property to Gray & Son and receive advances
on it. Second, that the plaintiff and Gray & Son acted on the belief that this
consignment was made under that arrangement. Third, that in point of fact this
consignment was made by Harry on his own account, and not on account of
William. And evidence showing that Harry, being in possession of the property,
consigned it to them, accompanying or preceded by such letters as showed the
consignment to be for his own account, was clearly admissible upon each of
these points. It is true it might, nevertheless, be the property of William, and
really sent for his account, but that was a question for the jury upon the whole
evidence.

38

The third exception relates to the admission of the testimony of Mr. Thomas
respecting certain declarations made to him by Mr. Ward. We do not deem it
necessary to detail the evidence, it being sufficient to say, that so far as these
declarations were made in the presence of all the defendants, they were of such
a character, and made under such circumstances, as imperatively to have
required them to deny their correctness if they were untrue; and therefore they
were clearly admissible. So far as Mr. Ward's declarations were made to Mr.
Teackle, when the defendants were not present, they are stated to have been
merely a repetition of his former statements.

39

The judge left them to the jury, with the following instruction:

40

'If the jury find that W. J. Ward, Esq., was, in his communication with the
plaintiff's counsel, accompanied by the defendants, and that defendants referred
plaintiff's counsel to said Ward to adjust and settle the differences between
them, that said defendants are bound by the acts and declarations of said Ward,
although he was only retained by H. F. Turner as such, unless such limitations
of retainer were stated to plaintiff or his counsel.'

41

This was sufficiently favorable to the defendants. It was really of no importance

whether Mr. Ward was counsel for one or all the defendants, if they united in
referring Mr. Thomas to him to adjust the mode of preparing the papers; and, in
our opinion, there was evidence from which the jury might find such an
authority to have been given by the defendants jointly.

42

We consider the fourth exception untenable. If it was usual to pay a

commission for such services, it was properly charged in this case there being
no evidence, to show that there was a special agreement to render the services
without pay, or for less than the customary commission.

43

The sixth exception was taken on account of the admission of the testimony of
Mr. Teackle, and certain letters of Gray & Co. and Harry Turner. The former
has already been disposed of in considering the third exception, and the latter in
considering the second exception respecting the correspondence of Harry
Turner, most of the observations upon which are applicable to these letters.

44

The remaining bill of exceptions is in the following words:

45

'Upon the further trial of this case, after the instructions prayed for had been
argued, and the court had decided to refuse the same, and had granted the two
instructions set out on the defendants' seventh exception, the defendants'

counsel having prepared out of court their exceptions thereto, and to the other
points of law ruled by the court and excepted to during this trial immediately
after the court had so decided, and before the bailiff to the jury was sworn, or
the jury had withdrawn from the bar of the court, presented their said
exceptions, and moved the court to sign and seal the same before the verdict
should be rendered; but the court refused so to do, and refused to consider the
said exceptions, or either of them, under the rule of that court, November 25th,
1846, at the November term thereof.
46

'Ordered, that whenever either party shall except to any opinion given by the
court, the exception shall be stated to the court before the bailiff to the jury is
sworn, and the bill of exceptions afterwards drawn out in writing, and presented
to the court during the term at which it is reserved, otherwise it will not be
sealed by the court.' In Walton v. The United States, 9 Wheat. 657, this court
said, 'we do not mean to say, (and in point of practice we know it to be
otherwise,) that the bill of exceptions should be formally drawn and signed
before the trial is at and end. It will be sufficient if the exception be taken at the
trial and noted by the court with the requisite certainty, and it may afterwards,
according to the rules of the court, be reduced to form and signed by the judge;
and so in fact is the general practice. But in all such cases the bill of exceptions
is signed nunc pro tunc, and it purports on its face to be the same as if it had
been reduced to form and signed during the trial; and it would be a fatal error if
it were to appear otherwise; for the original authority under which bills of
exception are allowed has always been considered as restricted to matters of
exception taken pending the trial and ascertained before the verdict.'

47

To what was there said this court has steadily adhered. 4 Pet. 106; 11 Pet. 185;
4 How. 15. The record must show that the exception was taken at that stage of
the trial when its cause arose. The time and manner of placing the evidence of
the exception formally on the record are matters belonging to the practice of
the court in which the trial is held. The convenient despatch of business, in
most cases, does not allow the preparation and signature of bills of exceptions
during the progress of a trial. Their requisite certainty and accuracy can hardly
be secured, if any considerable delay afterwards be permitted; and it is for each
court in which cases are tried to secure, by its rules, that prompt attention to the
subject necessary for the preservation of the actual occurrences on which the
validity of the exception depends; and so to administer those rules that no
artificial or imperfect case shall be presented here for adjudication. The rule of
the Circuit Court for the District of Maryland is unobjectionable, and this
exception is overruled.

48

The judgment of the Circuit Court is affirmed with costs.

Order.
49

This cause came on to be heard on the transcript of the record from the Circuit
Court of the United States for the District of Maryland, and was argued by
counsel. On consideration whereof, it is now here ordered and adjudged by this
court, that the judgment of the said Circuit Court in this cause be, and the same
is hereby affirmed, with costs and interest until paid, at the same rate per
annum that similar judgments bear in the courts of the State of Maryland.