The question, as stated by the court in that case, is not so much whether the last decision was right as whether it should be followed. These bonds having been purchased by the plaintiffs before the decision in the Harrington Case, and no previous exprei:)sion by the court other than that contained in State v. Town of Highland, are "clean obligations to pay" not affected by the last decision. It is urged that the bonds are invalid in the plaintiffs' hands by the fact that they were purchased during the pendency of the suit in which the law was held to be uncoIl,stitutional. The answer to this proposition is that the plaintiffs wertl not parties to, and had no knowledge of, that suit; and the rule that all persons are bound to take notice of a pending suit does not apply to negotiable securities. 97 U. S. 96. The plaintiffs are entitled to judgment in each case, and it is so ordered. MOCRARY, C. J. I concur in the conclusions reached in the fore" going opinion, as well as in the reasons by which they are supported.
CABLE v. PAINE & Co. and others.
(Oircuit Court, D. Iowa,
September 5, 1881.)
On Motion for New Trial. Davison eX Lane, for plaintiff. J. C. Bills and Hubbard, Clark tl Dawley, for defendants.
CABf,oE V. PAINE.
NELSON, D. J. This is a suit to recover damages on a contract to sell logs. The contract was made and signed in the name of the defendants by one rdison, who is alleged to have been the duly authorized agent of the defendants to sign such contract. The defendants delly that rdison had any such authority to make or sign the contract, and they also further aver that the contract was signed with the understanding that if not satisfactory to the defendants it should be called off. The defendants C. N. Paine & Co. were engaged in the manufacture of pine lumber, flooring,doors,sash, and shingles, and sawed lumber, at Oshkosh, in the state of Wisconsin. They also had a mill at Merrillon, in that state, and a lumber-yard in the state of Nebraska. rdison was their traveling agent, and there is evidence tending to show that he was selling, outside of the state of Wisconsin, materials, flooring, finishing lumber, a8 it is called, and als.o evidence tending to show that he had purchased from Hornby & Cable, on several occasions, sawed lumber and lumber manufa.ctured by them,and that Paine & Co. had paid for the lumber so purcha)sed by Idison. Previous to April 2, 1877, in the latter part of March, Imson was in Davenport, in communication with the plaintiffs, and the result was that he f.dgned to the contract for the sale of logs, and which was offered in evidence, the name of C. N. Paine & Co. The authority of rdison' was the' chief issue, and the jury rendered a verdict for the defendants.· A motion is made for a new trial. The errors of the charge are urged by counsel to be: First, in stating that-
"There is a rule which will guide a jury in weighing and giving effect to evidence, and aid them to reconcile evidence which is contradictory and conflict. ing. It is this: Where there are witnesses in the case of equal intelligence, and with equal opportunities of knowledge of the facts,some of whom testify to acts done, and conversations and declarations had, giving in detail a full account of such acts, conversations, or declarations occurring in their presence, or done or uttered by them; and others, who testify that they have no recollection that such acts were done, or conversations or declarations utteredthe affirmative testimony is, or ought to be, of greater weight in the minds of the jury than the negative testimony. To reject the affirmative testimony you will determine that the witnesses manufactured the evidence which they have given; while, in the other case, the want of recollection that such acts were done, or such conversations or declarations were uttered, may be attributed to the infirmaties of the human mind. I do not say that tbis rule is to be followed by juries without deviation; but it may be applied."
It was proper for the court to give this instruction; the rule is ele" mentary, and is thus stated by Starkie on Evidence, vol. 1,p. 578:
II If one witness were positively to swear that he saw or heard a fact, and another were to swear that he was present but did not hear or see it, and the witnessel!l were equally faithwortllY, the general principle would, in ordinary cases, create a preponderance in favor of the affirmative; for it would u:mally happen that a witness who swore positively, minutely, and circumstantially, to a fact which was untrue, would be guilty of perjury; but it would by no means follow that a witness who swore negatively would be perjured, although the affirmative were true," etc. This rule was applicable to a portion of the evidence of G. M. Paine, who testified about the conversation had with plaintiff at Merrillon, in November, 1877, when called to contradict the latter, and also to the evidence of Freeman, who was called to contradict Idison. Second. The next error alleged is in the following instruction to the jury: .. There is no evidence of a direct appointment of Idison as the agent of C. N. Paine &; Co., the defendants, giving him, in express language, authority to sell the logs mentioned in the contract, and the logs were not in his possession or under his immediate control at the time the contract was entered into. The plainti:lf claims that the fact that Idison was the agent of defendants for the sale of their manufactured lumber outside of the state of Wisconsin, and the fllrther fact that he had purchased sawed lumber from the plaintiff, and had traded for or purchased lumber-or finishing lumber, as it is calledfrom other persons for his employers, all of which transactions and acts had been recognized by the defendants, gave an implied authority to sell the logs mentioned in the contract,and to enter into it. Such is not the law. Authority in Idison to sign the defendants' name to the contract cannot be implied simply from the acts and transactions which I have detailed to you and which are in evidence. It is necessary for the plaintiff to show the acts (jf Idison ",ith reference to this particular contract, and a recognition of these acts on the part of the defendants, in order to prove that he had authority to sell the logs and to sign the defendants' name to the contract for their sale. 'fhe fact that he was their traveling agent for the sale of manufactured lumber, and that he-contracted with other persons for the purchase from the defendants of their sawed lumber, is not sufficient evidence for you to imply that he had authority to enter into this particular contract. The acts of Idison with reference to these logs, and the recognition of them on the part of the defendants, must be proved in order to establish his agency to sell the logs , and to enter into this contract in the first instance."
I am satisfied this instruction fairly presented the case. An agency is created, by (direct) express appointment, or it may be inferred from tbe relation of the'parties, and the nature of the employment, without proof of any express appointment. So says Chancellor Kent, vol. 2, p. 613, (4th Ed.) , This question controlled the verdict: Was the contract for the sale
, CABLE V. PAINE.,
of the logs binding upon Paine & CO.? There was no evidence of the express (direct) appointment of Idison to sell them. Bis authoritycould only be inferred from the relation of the parties, or proved by. the subsequent ratification ,of the contract. Briefly, the court in,structed the jury that the relation of the parties, (rdison being defendants' general agent for the s8t!e of manufactured lumber, sash, doors, etc.,) did not authorize him to make the contract, and left the question of ratification to the jury, omitting such of the instructions asked not pertinent to the case. Neither abstract questions of law were given, nor the exact language of plaintiff's requests. In reference to the claim urged, that defendants, with full knowledge of Idison's act, and with a copy of the contract in their possession, by acquiescence, had ratified it, the court, in substance, said: When information is given of the action of an agent who exceed,s'bis a:uthority. it is the duty of the principal, as soon as to it. It is not fair dealing, under sttch circumstances, to reject the contract and not inform the other party, (as the plaintiff the request asked, and in this case,) of its repudiation. This I see no error in the instruction. In fact, I am satisfied with the ' . charge, as a whole, and think the case was fairly placed before the jury, according to the testimony. There is, however, a troublesome feature of the case, and a new be granted. The plaintiff offered certain letter-press copies of his own letters, containing competent and material evidence. No notice to produce the originals had been given, and they were excluded. , On thetrial plaintiff's counsel's'tated, and now reiterates, ,ihat the rule had been established in the Iowa district, with the concurrence of all the jUdges, "that letter-press copies made at the time of letters written and sent by mail between, parties to a suit are not copies in the sense of the rille requiring notice, but are duplicate originals." I declined to recognize any such rule, but offered to withdraw a juror and postpone the trial to the next term; but for some reason the the decision. I was under counsel determined to proceed and the impression at the time that the amount inyolved wonld permit a writ of error, and the plaintiff, in case of anadveI1le verdict, could take advantage of this ruling against hip}. It now appears th'e jndgment of this court is conclusive, and while I am of the opinion that the capies 'Were properly excluded and if a writ ofelror cottld be taken would not disturb the verdict" yet there isa possibility of error in theevidenee','.rhe aSseverates that opinion i,s in 'conflict with all judges of the Iowa district. A
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judgment obtained under these circumstances, and no opportunity to review the decision, is not satisfactory and may be unjust. It makes no difference that the plaintiff rejected the offer to postpone the case. The judgment may be the result oia conflict in opinion between the judge presiding at the trial ahd the other judges of the court, and the plaintiff unable to ascertain which is correct. A new trial is granted, and it is so ordered.
TUOKER and others.
8, 1872, AND 21, 1878-AsSBSS-
(Oircuit Oourt, E. D . ..llissouri. September 27, 1881.)
mT OF TAXES.
ACTS OF MIS80URI OF MARCH .
The Missouri revenue acts of 1872 and 1873 require land situate in StLouis county to be assessed, not numerically, but alphabetically, in the name of the person owning or holding it, and such person is liable for the taxes thereon.
Where a person who has purchased a piece of land gives a deed of trust thereon to secure the purchase money, but remains in possession, he does not cease to be the owner or holder of the property within the meaning of said statutes. 8.
Said statutes authorize proceedings against the realty itself.
"- SAME-SAME-E.mCTMENT-EFFECT OF A SALE FOR TAXES UPON THE HIGHTS OF PARTIES CLAIMING UNDER A DEED OF TRUST AND CONVEYANCES THEREUNDER.
Where A. bought land from B. and gave his note for the purchase-money, and a deed of trust on said land to secure their payment, and entered into and remained in possession until certain taxes were assessed in A. 's name and levied thereon, under said statutes; and where E, the trustee named ih said deed of trust, had, in pursuance of its terms, sold said land, after said assessment and levy, to B., because of A.'s failure to pay said notes, and B. had taken immediate possession and thereafter conveyed his interest to other parties; and where said land was thereafter sold for said taxes assessed as aforesaid, and dellds therefor executed and delivered to the purchaser,-held, that said tax deeds not only conveyed A.'s interest, but also the interest of all persons holding under said deed of trust and said conveyance to B. This is an aetipn of ejectment. The plaintiff claims through mesne conveyances under two tax deeds, one of which was for the taxes of 1872, assessed on the land in question in the name of Mary A. Musser, under the revenue act of the Missouri legislature, approved March 3, 1872 j and the other for the taxes of 1875, assessed against the same land1 in the same name, and under the same act, as amended by revenue act approved March 21, 1873. Mrs. Musser bought said land from Charles Gibson, and gave a deed of trust thereon to secure the purchase money, L. H. Conn being named therein as trustee. The indebtedness to Gibson was evidenced by certain promissory notes, and,