#### REDDICK POLLARD *vs.*DRURY TEEL.

June 1843

The refusal of the court to instruct the jury upon a supposed state of facts, which does not appear on the evidence, constitutes no error.

What degree of *care*and *diligence*is required of one, who undertakes to sel-goods for another, and to sell to none but solvent persons, and what degree of *attention*and *diligence*in one who undertakes to collect notes or accounts for ^inothe.r, que.re 1

Appeal from the Superior Court of Law of Pitt County, at Spring Term, 1843, his Honor Judge Manly presiding.

This was an action of assumpsit, in which the plaintiff declared upon the defendant’s undertaking to sell certain goods, under instructions not to sell to any insolvent persons ; and also upon his undertaking to collect certain notes and accounts, arising from the said sales: to which was added a count for money had and receiyed. The proof was that the defendant agreed with the plaintiff for a compensa*471tion of 13 per cent, to- peddle, off a stock- of goods for him in the county of Martin, and the plaintiff instructed him not to sell to any one who was not good. It was also in- proof that the parties, after the sale of the goods was completed, had a settlement, upon which the money proceeds of the sale (after deducting the compensation for the defendant’s services) and a number of notes and accounts, the residue on hand, were paid over to the.plaintiff. Whereupon the plaintiff again placed them in the defendant’s hands for cob lection, telling him to do the best he could with them; Of these, the amount of $17 50 was collected, and, upon a demand of a settlement prior to the bringing of the suit, the uncollected- notes and accounts were offered to the plaintiff, which-he refused to receive,-upon the ground, as he alleged,that the defendant-had had them-long, enough. Evidence was gone into on the part of the plaintiff to shew that more-of these notes and accounts were- collected,, which i-t- is unnecessary to state. The court informed the jury, that' the-undertaking by the defendant to sell the goods and to sell them according to the instructions given, imposed upon him-obligations of the *strictest caee and diligence,*and if he had failed to exercise this degree of prudence in the dis*charge of these obligations in any .particular, whereby loss-had resulted to the plaintiff through bad-debts or otherwise,, the defendant was bound to- make good such-loss,.and the' jury should assess damages accordingly. Upon this first part of the case, however, they were further charged'to en-quire whether there had been, at the settlement spoken of in the testimony, an adjustment of mutual differences between the parties, and an agreement on the port of the-plaintiff to, abandon all causes of complaint ha might have against the defendant. If there was a settlement in-this'sense-of t’he word, then the jury should not go behind it and assess damages for any such adjusted differences, but should confine their enquiries to the subsequent part of the case. -Upon the next count in the declaration, respecting the collection of the-notes and accounts, the court instructed the jury, that the defendant, having upon sufficient consideration undertaken *472to collect, was bound to bestow the *strictest attention and diligence*on this duty ; and, on failure, must make good the loss, if there was any debt or debts which might have been collected by the degree of diligence thus imposed upon the defendant by law, and the jury upon this part of case would assess damages of ail equivalent amount. The jury were informed that they should find upon the third count the sum of f> 17 50, if they were satisfied by the proof of its collection, and this, added to such sums as they might assess upon the other parts of the case, would, in the aggregate, constitute the proper verdict for them to render. The court further remarked, that the defendant did not, in respect to either of the commissions he had undertaken to fulfil, stand in the condition of an insurer. And it bad debts had been made in the one case, which no degree of prudence could have avoided, and losses in collecting sustained in the other, which no diligence could have counteracted, the defendant would not be responsible in respect to them. The plaintiff’s counsel asked the court to instruct the jury that “ if they believed the bargain to sell the goods, and that to collect the notes and accounts was all one transaction, then there was a presumption of law that the notes and accounts were good, until the contrary appeared.” The court declined giving-such instruction. The jury found a verdict for the plaintiff for $>17 50. A new trial having been moved for and refused, and judgment rendered according to the verdict, the plaintiff appealed to the Supreme Court.

No counsel appeared for either party in this court.

Gaston, J.

The only specific instruction, which was prayed in this case on the part of the plaintiff, was, as we think, properly declined by the court. The prayer was to instruct the jury, that *“*if they believed the bargain to sell the goods and that to collect the notes and accounts was all .'one transaction, there was a presumption of law that the notes.and accounts were good, until the contrary appeared.” *473Now, without deciding what would be the presumption law upon the supposition that the bargain to sell the goods and the bargain to collect the notes constituted but one transaction, the instruction was rightfully refused, because they were *apparently*separate and distinct contracts made at different times, and there was no evidence to shew that they were *in fact*variant from what they purported to be.

No exceptions are put upon the record to the instructions given by his Honor, nor are we apprised (for the case has been submitted to us without argument) in what respect the plaintiff alleges them to be erroneous. We do not see that the plaintiff has any cause to complain of them. The rule of diligence, which the court laid down, was certainly as rigorous as *he*could rightfully have asked to be applied to the defendant’s undertaking. Had the defendant excepted to this rule as too rigorous, it would perhaps have been so held,’ But on this it is unnecessary to give an opinion.—

The judgment is affirmed.

Per Curtam. Judgment affirmed.