Storey v. Union Bank

34 Ala. 687

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

R. IN. WALKER, J.

The'faet sought to be established bj' the opinions of the witnesses Huey and Thomason was, that it was more profitable to borrow money and discount on private account than to act as an agent for a bank. The relevancy of this fact is, to say the least of it, open to grave question. To what ("if any) weight it would be entitled, in determining the question whether J. S. Winter & Co. were acting as agents for the bank, or on their individual account, would depend materially on many other facts of which no mention is made in the record. It might require more means and better credit to borrow money from a bank, than-to obtain an agency. Hence, if the person whose relation to the bank was in question, was not in a condition to borrow the money, the fact that dealing with borrowed money on private account was more profitable than an agency, would be entitled to no weight. The motives which control human conduct, differ as widely as the phases of character to be found among men. The greater profitableness of one business might attract one person,while another would prefer a different employment, of which, though the profits might not be so large, the risks would be less. The choice of a profession or occupation is so' much a matter of taste and inclination, and controlled by such an infinite variety of facts, often of a private nature, that we are not able to say that, in order to determine which one of two employments an individual was engaged in at a particular period, the mere fact that one was likely to be more profitable than the other can be considered as a circumstance relevant to the inquiry.

2. But, upon the supposition that the fact was relevant, we think the evidence which the plaintiff was allowed to introduce for the purpose of establishing it was not competent. This evidence consisted of the mere opinions of witnesses, in favor of the abstract proposition, that-dealing with money on private account is more profitable than a bank-agency. It is obvious, that no general rule can be laid down, as to the amount of profit which would be realized by a person dealing with borrowed money on his individual account. It is a question, which, in this case, as in all others, would depend for its solution uj>on complicated facts, which are not shown to have been within the knowledge of the witnesses. Much would depend on the character and habits of the person undertaking the business ; much also'on the terms on which, and the amounts in which money could be borrowed; and these would be regulated by the fluctuating condition of the financial world, and by the habits, means, and credit of the borrower. It is plain, too, that the inquiry could not be answered with out .a knowledge of the terms on which the borrowed money could be invested, the amount that could be profitably used, and the- extent of losses likely to be sustained by reason of insolvencies or other causes; and these several matters would, in their'turn, depend on such a number of constantly changing facts, as to render impossible the establishment of any general standard or fixed rule by which the probable profits of the business could be determined. On the other hand, the profits of a bank-agency would depend, in some degree, on the mode of compensation — whether by fixed salary, or by commissions; if by commissions, hhepercentage allowed, and the amount of money employed ; and this, again, would be determined by the character and capacity of the agent, the location of the agency, the absence or presence of rival-agencies or other banking institutions, the general condition of business, and a multitude of other facts, which no human foresight could anticipate. Our opinion is that, in matters of this sort, no general rule can exist, capable of affording a test by which to determine which one of two or more employments will yield the largest profit. This was, therefore, not a case for the applieatión of the rule which allows experts to give their opinions upon questions of science or trade. — Norman v. Wells, 17 Wendell, 141, 161; Donnell v. Jones, 13 Ala. 490.

The other questions presented by this record may not arise upon another trial, and we will not consider them.

Judgment reversed, and cause remanded.

A. J. WaukbR, C. J., not sitting.