Heard v. Russell & Potter

59 Ga. 25

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Jackson, Judge.

This was a bill filed by Heard against the defendants, for an account of moneys received by Russell & Potter from him andexpended by them through Leech, Harrison & Eorwood, of Liverpool, England, in the purchase of cotton for him. The immediate purpose of the bill, it seems, was to enjoin Russell Potter from selling securities put in their hands by Heard as margin to cover losses in the purchase of futures in cotton. The main allegations in the bill were that they (Russell & Potter) had disobeyed the instructions of Lleard, after inducing him to cover’margins from time to time, amounting to some thirty-five thousand dollars, and that thus he had been damaged by them, and the prayer was for account, and relief, and injunction against selling the securities.

The bill waived discovery, but the defendants answered fully, putting in issue most of the allegations in the bill.

After the issues were made and testimony taken, 'the defendants, ' who had set up their account against Heard, and who claimed an indebtedness to them on a long account of purchases of 2000 bales of cótton and repurchases of future deliveries to cover losses from time to time, cablegrams and telegrams, and expenses of like character, asked, for an auditor.' The chancellor appointed an auditor over objections of complainant, and he excepted, filing an interlocutory bill of exceptions.

When the auditor’s report was filed in the cleric’s office, no order was taken thereon, allowing the same or approving it, or giving time to except thereto, but exceptions were filed thereto by the complainant, mainly on the ground that the auditor transcended his powers, and reported an argument or conclusion on fraud and failure to follow instructions rather than, or in addition to, a statement of an account proper between the parties. These exceptions were filed in vacation, but the report was returned and filed in the clerk’s office, and no order taken thereon to show that it was returned in term.

At the next term thereafter, the case came on for a hearing, and the jury, under the charge of the court, brought in a verdict of upwards of six thousand dollars against Heard, as balance due Russell & Potter by him, for moneys paid by them to Leech, Harrison & Forwood. A motion was made by Heard for a new trial, on various grounds therein set out. It was overruled, and the complainant excepted. The question is, did the court err in refusing to grant a new trial on any of the grounds taken in the motion, and on which error is assigned here ?

The first ground is, that the court erred in the appointment of an auditor. Inasmuch as no assignment of error thereon was made on the original interlocutory bill of exceptions, the point was made that this could not be made a ground for the grant of a new trial, and error be assigned because the court refused the new trial on the error committed — if one was committed — at a prior term of the court. There was doubt on our minds about this point; but, on reflection, we do not see why the apjoointment of an auditor at a previous term should not be made a ground for a new trial, when his report was read in evidence, and may have controlled the verdict of the jury. The judge who appointed the auditor, though not the same individual who tried the case, was the same court, the same official person ; and if the court had erred at any time in the progress of the trial, we do not see why it could not correct the error after trial on a motion for a new trial. Of course the party must except, and put the point on reeord, so as to perpetuate the exact memory thereof ; but the same point thus perpetuated of record, may be renewed, on the motion for a new trial, so as to allow the court, if it will, to correct then the error it had previously committed, if error it was. Inasmuch as if it were error, this court would, on appeal to it, order a new trial, we cannot see why the court below could not, on reflection, do the same thing; just as it often does correct, on such a motion, its errors in admitting or rejecting evidence, or in its charges to the jury.

The fact is, that the trial of a case may be said, with propriety, to embrace the entire proceedings, from its first footing in the court to the final exit therefrom with judgment; and the motion for a new trial may well embrace every act of the court, from inception to verdict, if excepted to at the time the error was committed, or alleged to be, and spread on the record for certainty that it occurred as alleged in the motion for new trial.

2. But conceding that the assignment of error is properly and substantially made on this interlocutory bill of exceptions, did the court err in appointing the auditor? We all think that it did not err.

This bill does involve accounts and long accounts between these parties. Its prayer, among other prayers, is for general account. It was, therefore, in the discretion of the court to appoint an auditor in this case against the wishes and assent of either party. The act of 1871 fully embraces such a case. It is true that this court held in Yanduzer’s case, in 37 Ga. 299, that an auditor could not be appointed except on consent of parties, but the act of 1871 — see Code § 3139 and acts of 1871-2, page 54 — embraces cases of account, and enables the court to appoint an auditor with or without the consent of the parties. It was right then that the court should appoint the auditor. Nor does it matter on what testimony, or from what sort of examination of the case, thorough or cursory, the appointment was made, provided always that the case authorized it. The court should satisfy itself. If it judged wrong, its judgment can be reviewed here, and in the event its discretion were abused in appointing an auditor in a case not authorizing such appointment, or in appointing an improper person from bias or want of capacity, its decision could be corrected. The presumption is that every man occupying the exalted and reponsible position' of judge of the superior courts, with the. eyes of an enlightened and vigilant bar ever upon him— a bar who are his judges, and by whose judgment his character, judicial and personal, will be weighed by the community — will discharge this as every other duty — fearlessly and impartially. And the presumption is that the auditor so appointed, usually a member of the bar, will discharge his duties with like impartiality — seeing that he too is surrunded by his peers, his brethren of the bar, and that his professional reputation is staked upon his conduct in the semi-judicial character in which he is called upon to act.

3. But when the case came on for trial, the report of the auditor came up for consideration; and certain exceptions thereto, filed in vacation between the term when the report was filed, if in term, or the time when filed, if in vacation, and the term of court when the case was called, and these exceptions came before the court, and the court thereupon overruled, or dismissed, to use the language in the record, the exceptions; and this is another ground of the motion for a new trial on which error is assigned ; and then, instead of entering a decree on the report of the auditor, as provided in section 4206 of the Code, or if the case was tried at all, trying it under section 4203 of the Code, upon such exceptions of fact as were taken to the auditor’s report, the court tried the case before the jury generally, and allowed the entire auditor’s report, on law and evidence, to go to the jury as evidence. And upon all this error is assigned.

Section 4203 is imperative in respect to the mode of trial. It declares that “ the exceptions shall lye the onVy issues of fact submitted to the jury, and the jury shall return a verdict on each exception seriabimP

Upon what ground the whole body of complainant’s exceptions was dismissed, the record does not disclose. It must have been because not filed in time, or filed in vacation, we suppose. No time had been fixed for exceptions to be filed by any order disclosed in the record, as should have been done — see Code, §4203 — and none being prescribed, as the exceptions were filed in the clei-k’s office some time before the trial term, we think that they were in time. Nor are we aware of any law, or practice, which requires the exceptions to be filed in term only. Usually, so far as the practice has come under our observation, when the report is made, the court orders it filed for inspection of parties, and in the order prescribes a certain time in which exceptions thereto may be made and filed by either party; and this seems to us the better, if not the necessary practice as indicated in section 4203 of the Code. As no time was fixed, and no order made requiring the parties to except in term or vacation, and what time in vacation, we do not think that it was right to dismiss all the exceptions for either of these reasons.

On examining the exceptions, while some are exceptions of law and others of fact, it must be confessed that they are much intermixed; yet, we think that there are some naked (questions of fact made by the exceptions, which the jury ought to have passed upon. The proper course to be pursued by the judge, we think, was to have decided himself the questions of law made by the report, and to have eliminated from it any errors found in the report suggested by those exceptions ; and then to have submitted the exceptions of fact to the jury — -to be passed upon by that body, and a verdict rendered on each exception seriatim. See §§ 4202, 4203, 3097, 3138, 3139 of the Code.

On the trial before the jury, as has been often held by this court, and as the Code expressly provides, the report on the facts — the finding on them by the auditor — is prima facie evidence on the trial of the exceptions before the jury; but the entire report on law and fact, including the argument of the auditor on legal questions, while proper for the consideration of the court on the legal exceptions, of which he alone judges, is not evidence for the jury, and should not have gone to them — especially as the trial was a general one, and not on the exceptions. See Code, §4203, and 47 Ga., 414-434 ; 655 Ga., 28; 57 Ga., 142.

4. In respect to what is proper matter to be passed upon by the auditor under the act of 1871, we think that it is the statement of account between the parties, and all facts necessary to be found in order to make that statement and arrive at the just balance between them. If, in a long and complicated account, any item thereof be attacked as unlawful, or unfounded in truth and fact, then the auditor must determine the legality thereof, for final judgment by the chancellor, if excepted to, or the truth and fact thereof, for final settlement by the jury, if excepted to. For this purpose he may consider evidence, either written or oral, and determine the truth in his judgment of each contested item, and his ascertainment thereof is evidence prima facie for the jury. It will be seen by reference to the act of 1871 (stat. 1871-2, p. 54, Code, §3139), that it vests in the court power, at its discretion, to appoint an auditor at law, or in equity, to report upon matters of account, as formerly, by the decision in Vanduzer’s case, could only be done by consent of parties; and that the auditor’s proceedings, and the effect thereof, was to be the same in this case and under this statute as before by consent; for that act distinctly refers to §3082 and §3083 of Irwin’s Code for guidance, which are §3137 and §3138 of the Code now in use.

In construing this act we must look at the old law, the mischief and the remedy. The old law was, that an auditor eould be appointed only by consent of parties. The mischief was, that sometimes a party was obstinate; that'a jury could not well ascertain the account in the hurry incident to their investigations; that the judge saw that the case demanded a close sifting and settlement, or ascertainment, of the account and its items, and, in his judgment, an auditor was needed, and then, as the remedy, the statute declared that he could appoint one, without consent, to do what formerly auditors, with consent, could do.

Of course, as by consent formerly the powers of the auditor could be restricted to the mere calculation of arithmetic, if it pleased the parties, so now the same can be done by the court under the act of 1871. In this case the order is quite general, but we think that its true intent was to invest the auditor with the power to investigate and state the account, and ascertain the facts necessary to that work, and to go no further.

5. When the report was in evidence- — all of it, argument and legal decisions and all- — -the court told the jury that the complainant, Heard, was bound by it. It seems that Heard had not been sworn béfore the auditor as a witness, and some point had been made thereon, and in charging upon that circumstance by request of defendants, the court used the language. It was too strong entirely. If Heard were bound by the report, of course he could not get around what it found; whereas, the law makes the report on the facts submitted, only prima facie evidence. This report contained argument and law, and this charge bound Heard by that argument and that law.

6. The complainant waived all discovery, hut used a portion of the answer to show that Leech, Harrison & Forwood were the agents of Russel & Potter, and offered portions in evidence therefor; whereupon the court, on motion of defendants, .allowed all the answer to go in as evidence.

¥e approve this ruling of the court. If one party introduce part of a letter or other writing, the other may use the remaining part. The rule’ should be stronger, or rather the reason therefor is stronger in case of the answer of defendants where discovery is waived. The complainant said by his waiver, “I can get along without your answer; I need none of it,” and he thereby deprived defendant of the great advantage of having his answer to be equal to two witnesses or one witness and strong corroborating circumstances; but at the hearing he was obliged to use a part of the answer, or at least he did .so. When he did, he opened the whole answer for the use of defendants as evidence — not, indeed, as if no discovery had been waived when it would have been equal to two witnesses, but as equal evidence with the part put in by complainant. We think the court did right so to rule.

Y. Inasmuch as the question at'issue involved imposition upon Heard by these factors and dealers in cotton, we see no error in allowing the defendants to show that he had dealt in cotton largely and was no tyro in the trade. Whether he had been a successful dealer or not might, perhaps, have been properly ruled out, but take it altogether we think there is nothing valid in the objection — certainly not enough to authorize a new trial on such a ground.

8. The bill quoted certain letters from Russell & Potter, and they were relied upon. The court allowed the defendants to put in their entire correspondence with Heard, and with Leech, Harrison & Forwood, their Liverpool correspondents, about Heard’s business touching this cotton transaction. It seems to have been the only way to open the whole case to the jury. It was the current history of the trade and its execution. It showed what Heard thought about cotton, and did, and ordered done; what Russell & Potter directed the Liverpool men to do; and what the Liverpool men wrote and did. The letters were properly adniitted.

9. The request to chargé, that “ if Russell & Potter, or their agents, Leech, Harrison & Forwood, disobeyed Heard’s orders to receive when tendered, and sell as spot cotton, Russell & Potter are liable for all damage proven to have been thereby occasioned,” without more, was properly refused; because whether or not they ought to have received and sold would depend upon many other things, to-wit: the contract, the understanding about margins being kept up, and the right of the factors, under such contract, to sell before delivery, and not as spot cotton, to save themselves, if such were the contract.

10. Nor do we find any error in qualifying the fifth request to charge. That request was, “ If, however, you find that $24,000 had been paid, in good faith, before suit, and $11,000 remained in their hands until after suit, it is a fund in court subject to Heard’s claim,” which the court gave, but qualified by saying, “ but I give this charge with the qualification that the $1100 remaining in their hands had not been, with the knowledge and consent of Heard, hyputhecated to raise funds to be forwarded; if this had been done, then the $11,000 and $24,000 go together.” The idea of the request was, that if money had been bona fide expended by Eussell & Potter before Heard sued them, in reimbursing their correspondents and themselves, they might be protected for such expenditure ; but not in regard to securities in their hands, after suit. The court told the jury that if these securities had been pledged by Eussell & Potter, with Heard’s consent, to raise mouey to be sent forward to Leech, Harrison & Forwood, then such fund so pledged was like the money sent on, and must share the same fate. It seems right.

11. ¥e see no error in the charge, that if Heard ratified the contract when reported to him, it bound him.

12. As a general rule, factors have a general lien for all advances made, and the right to sell to secure themselves from loss; but if they agree not to sell except in a particular way, then they are bound by- the agreement. It follows that, as in this case, the complainant contended that there was such an agreement, the charge that they had such a lien was too broad, unless qualified by the addition, that though such is the general rule, the contract, if there be one proven to the satisfaction of the jury, must govern.

13. This suit having been brought by a party to recover from the agents certain moneys intrusted to them, to buy cotton on future delivery, and the agents having set up that the principal owed them money for losses they had sustained in buying the cotton for the principal, the law of the case and the legality of the recovery has been settled by this court in 45 Ga., 507; and while we regret that the decision then rendered by this court, as at that time constituted, does not meet the approbation of the able and experienced judge who presided in the court below in the case now under review, he will, we are sure,'pardon us for reminding him that the judgment binds this court, as now constituted, as well as the superior court of the Augusta circuit, and that it can do no practical good to indulge in philippics before the jury against either the correctness or the morality of the law as then expounded. The decision complained of and inveighed against is a unanimous judgment, and until deliberately reviewed and overruled, it is as binding as an act of the legislature. Code, §217. No request has been made of this court to review it, and we shall remain satisfied with and will feel resigned to enforce it, until it has been so reviewed and overruled; and we commend the like resignation to the court below.

Whilst if fully and fairly tried, the verdict of the jury in this case may be the same as rendered on this trial, yet, inasmuch as the case has not been tried according to law in our judgment, and the court committed error in respect to the auditor’s report, and in charging that Heard was bound by it, and in not allowing the issues of fact made in the exceptions to that report to be passed upon seriatim, and in admitting the whole report to go to the jury as evidence in a case not tried on the exceptions to it, we reverse the judgment, and grant the complainant a new trial.

Judgment reversed.