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Vol. IV.]

COCKLE v. FLACK.

(No. 4.

the joint use of their money and their personal service, increased in value by their character for integrity and experience. To both these sources they looked for their profits, and they were necessarily united.

It was a necessity of their trade, and it was lawful for them while loaning their money at a specified rate of interest, to stipulate with the parties to whom it was loaned for the incidental advantages of acting as commission merchants for the sale of the property in which the money was to be invested by the borrower. They had the right also to require as a condition of the loan that it should be invested in such property as would require their services in selling and handling it. All this is admitted.

We see no reason why the parties could not go a step further, and stipulate that if for any reason operating in the interest of the borrower he should prefer to become his own broker or commission merchant, or to sell at home, he should pay the commission which the other had a right to contract for and receive. Like the port pilot, and other instances, they were ready and willing to perform. They had a place of business, clerks, and their own time and skill, ready to devote to the plaintiffs' business. In that business they had a large pecuniary interest. They had loaned their money without requiring any other security than the obligation of the other party, except that which might arise from the property coming to their hands. To make this property a sufficient security the contract required of the plaintiffs that they should invest in the same property $20 of their own money to every $80 borrowed of defendants. The relinquishment of this right to control the sale of the property was a good consideration for the commissions which they would have made if they had sold it.

While it was possible to make such a transaction a mere cover for usury, it was at the same time possible that the contract was a fair one, in aid of defendants' business, a business in which they were actually and largely engaged, and in which lending money was the mere incident and not the main pursuit.

It was, therefore, properly left to the jury to say whether, under all the circumstances, it was or was not a usurious transaction, under instruction to which we can see no objection.

We do not think the express reservation of ten per cent. interest makes the contract usurious, because the law of Maryland forbids more than six. The contract was quite as much an Illinois contract, where ten per cent. is lawful, as a Maryland contract, and the former is the law of the forum. The ruling of the court below was in accord with what this court had held in Andrews v. Pond, 13 Peters, 65.

The judgment of the circuit court is affirmed.

Vol. IV.]

Nixon v. Brown.

(No. 4.

SUPREME COURT OF NEW HAMPSHIRE.

(To appear in 57 N. H.)

PRINCIPAL AND AGENT. ESTOPPEL BY PRINCIPAL TO DENY AUTHOR

ITY OF AGENT TO SELL.

NIXON v. BROWN.

The plaintiff employed one M. to buy a horse for him. M. bought the horse, paying

for it with the plaintiff's money, and took a bill of sale in his own name. Afterwards he informed the plaintiff of what he had done, and showed him the bill of sale; but the plaintiff permitted him to go away with the horse and bill of sale still in his possession. M. thereupon went to the defendant, who had no knowledge of the agency, showed him the bill of sale, sold him the horse for cash, and absconded. Held, that the plaintiff could not recover in an action of trover for the horse.

ONE Charles Mason, who resided in Whitefield, N. H., purchased the horse in question of one Hubbard, who resided in Dalton, N. H., for the plaintiff, who furnished the money ($95.00) to Mason to pay for the same. Mason did not disclose to Hubbard that he was purchasing for the plaintiff, but, on the contrary, gave Hubbard to understand that he was acting for himself, and took a bill of sale of the horse from Hubbard to himself. Afterwards Mason informed the plaintiff that he had made the purchase, and showed him the bill of sale, and told him he could give him a bill of sale, and that would make it all right, but did not do so; and it was then arranged that Mason should bring the horse to the plaintiff on the following Monday - this being on Saturday; and it was further arranged that Mason, after he had brought the horse to the plaintiff, should take him and keep him, and drive him to better break him. Mason never brought the horse to the plaintiff, but on Tuesday – having previous to said Saturday showed the horse to the defendant, who was then stopping at Whitefield, and represented to the defendant that he, Mason, owned him he showed the defendant the bill of sale from Hubbard, and finally sold the horse to the defendant, and received in payment $75.00, and then left for parts unknown. The report of the referee to whom the case was sent was to this effect.

Both parties moved for judgment, and the court ordered judgment for the plaintiff, to which the defendant excepted.

LADD, J. I am of opinion that the defendant's exceptions in this case must be sustained, and that judgment should be entered in his favor upon the report of the referee. The general rule, that the possession of goods by a bailee, or servant, gives him no power to make any disposition of them, except by virtue of actual authority received from the owner (Perley, J., in Foisom v. Batchelder, 22 N. 8. 51), is so well settled as to be quite elementary. But there are several exceptions to this rule, quite as well settled, and quite as well understood as the rule itself. One relates to money, bank bills, checks, and notes payable to the bearer, or transferable by delivery. The cases establishing this exception, commencing, perhaps, with Miller v. Race, 1 Burr. 452, are very numerous,

Vol. IV.)

Nixon v. BROWN.

(No. 4.

and quite uniform. Another exception, in England, relates to sales in market overt. But as we have no markets overt in this state (Bryant v. Whitcher, 52 N. H. 158), that exception has no existence here. Another is where the possession of the bailee, from the nature of his employment, implies an authority to sell, - as, when goods are left with an auctioneer or factor, a sale by such bailee, though he had no actual authority, will bind the owner. Perley, J., in Folsom v. Batchelder, supra, p. 51, and cases cited. The reason given for this last exception is, that the owner has allowed the bailee in possession to hold out the appearance of an authority to sell, which would deceive and defraud the fair purchaser if the law allowed the validity of the sale to be questioned. This statement of the reason, thus clearly and succintly given by the late Chief Justice Perley, suggests the ground of my decision in this case. The facts, specially stated by the referee, show most clearly to my mind that the plaintiff allowed Mason, while he retained possession of the horse, to hold out the appearance of ownership in himself, and so of an authority to sell, which would deceive and defraud a fair purchaser if the law permitted the validity of the sale to be questioned. .

At the argument Mr. Carpenter (counsel for plaintiff) put this supposed case: A having sold his horse to B, delivers the animal, together with a bill of sale running to B, to his servant or agent, to be carried to the vendee. But the servant on the way, finding a customer for the horse, produces the bill of sale, represents himself to be the person there named as purchaser, and sells the horse to an innocent third person.

Of course there could be no question of the right of the owner to recover his property, under that state of facts, against such innocent purchaser. The cases covering this point are numerous, of which Saltus v. Everett, 20 Wend. 267, is a good example. In that case it was held that the purchaser of part of a cargo of a vessel was not protected against the claims of the real owner, although the purchase was made under a bill of lading, regular and fair on its face, it appearing on the trial of the cause that the master of the vessel, in which the goods were originally shipped, had fraudulently, at an intermediate port, transshipped the goods into another vessel, and procured a bill of lading in his own name, which he transferred to his agents, the vendors.

If the plaintiff had not been informed of the fact that Mason had taken a bill of sale of the horse in his own name, and with that knowledge pemitted him to go forth clothed with all the indicia of ownership, and so completely armed for the commission of a fraud, the case supposed in argument, and that class of cases of which Saltus v. Everett has been referred to as the type, might have application. As it is, I think they do

, not apply at all. I regard this act or omission, if it should be called an omission, of the plaintiff as decisive of the case; and I am therefore of opinion that there should be judgment on the report for the defendant.

Exceptions sustained.

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The ingredients necessary to constitute murder in the first degree having been proved,

the circumstance that the killing was preceded by a verbal dispute and by violent threats uttered by the deceased will not reduce the grade of the offence. The fact that an isolated part of a charge may be open to doubt, when read without re

gard to the other parts thereof, is not sufficient ground for reversal.

6

At the trial below counsel for the prisoner requested the court, inter alia, to charge : “ That to constitute murder in the first degree, there must be a design and intention to kill at the time the homicidal act is committed, and this intention must be a fully formed purpose to kill, with so much time for deliberation and premeditation as to convince the jury that this purpose is not the immediate result of rashness and impetuous temper.” The court (Sterrett, P. J.) declined to affirm this point as a whole, saying: “ It is correct with the exception of the qualifying clause with which it closes. To constitute murder of the first degree, there must be a design and intention to kill at the time of the homicidal act, and this intention must be a fully formed purpose to kill, with sufficient time for deliberation and premeditation, as already explained in the general charge, but the purpose to kill, necessary to constitute murder in the first degree, may sometimes be “the immediate result of rashness and impetuous temper.' A rash and impetuous temper is no excuse, unless it has been aroused by adequate legal provocation, as explained in the general charge, and the intention to kill has been formed in the heat of passion thus generated." The learned judge charged, inter alia, as follows: “ All murder, not of the first degree, is necessarily murder of the second degree, and includes all unlawful killing under circumstances indicating depravity of heart, and a disposition of mind, regardless of social duty, where no intention to kill exists or can reasonably be inferred. Therefore in all cases of murder, if no intention to kill can be inferred or collected from the circumstances, the verdict must be murder of the second degree.

Manslaughter may be defined to be the unlawful killing of another without malice, express or implied, which may be voluntarily done in a sudden heat of passion, or involuntarily, in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this: manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences, or cruelty. But being sometimes a wilful act, as the term voluntary denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore to reduce an intentional blow, stroke, or

Vol. IV.]

GREEN v. THE COMMONWEALTH.

[No. 4.

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wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation, and a state of rage or passion, without time to cool, placing the accused beyond the control of his reason and suddenly impelling him to the commission of the deed. If any of these be wanting, -- if there be provocation without passion, or passion without legal provocation, or if there be time to cool and reason has resumed its sway, the killing will be murder. But it is not every cause of provocation that is regarded as sufficient or legal. Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a slight and trivial nature. Whenever the act evidences a deadly revenge, and not the mere heat of blood; whenever it is the result of a devilish disposition, and not merely the frenzy of rage, it is not manslaughter, but murder. Passion arising from adequate legal provocation is evidence of the absence of malice."

The jury found the prisoner guilty of murder in the first degree, and sentence of death was pronounced accordingly.

The defendant took this writ, assigning for error, inter alia, that “the record and evidence failed to show that the ingredients necessary to constitute murder in the first degree were proven to exist; and the refusal of the

court to affirm the latter part of the above point. J. C. Graham $ J. H. Baldwin, for plaintiff in error. T. M. Bayne & E. A. Montooth, contru.

AGNEW, C. J. Upon a careful examination of the evidence in this case, we find that all the ingredients necessary to constitute murder in the first degree were proved to exist.”. The prisoner and the deceased had been upon bad terms, and involved in litigation immediately before the homicide. The former, on the next morning after the lawsuit, had threatened the life of the latter. In the evening of the killing he stopped before the door of the house where the deceased was sitting at supper, and asked the latter what he was going to do about the potatoes

a subject of difficulty between them. This led to an angry altercation, the deceased using bad language, and threatening to give the prisoner a good pounding. The prisoner having started up the road towards home, saying he would bring suit next day, the deceased ran back to the fireplace, picked up a poker, and running out of the house, called to the prisoner to come back, saying if he came he would not go away alive. The prisoner then being some yards up the road, said, "I will come,” and started towards the deceased, and, before reaching him, levelled at him a gun he had been carrying in his hands. The latter said, “ Shoot if you want to." At the same instant the report and flash of the gun were heard and seen. The deceased fell near the spot where he stood before the house; the sound of a heavy blow was heard, and very soon the prisoner started off towards home. The deceased was found with a large gash in his head; a piece of the gun-barrel, about one foot long, was shortly afterwards found near by; and the broken gun carried off by the prisoner found at his house on the same evening. No one saw the blow struck, yet the sound of it, the broken piece near the spot, the fractured gun, and the cut in the head of the deceased, leave no doubt of the fact. Nor is it very material where and how precisely the blow was struck, as the evidence beyond question proves that the gun was fired before the prisoner reached the deceased,

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