Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-02-28
decision of the Supreme Court.

Decision Of the Supreme Court.
WILLIAM AND 4. F. FOSTER, rs. j. H. AND
E. SMITH.
At the March term, 1861 of the Circuit Court for
Smith county, this cause was submitted to jury,
who rendered verdict in favor of the defendants,
upon which a judgment was pronounced. The
plaintiffs moved for trial, which was refused,
and they have appealed to this court
The declaration contains three counts. The first
charges the defendant as common carriers for fail
ing to deliver according to promise, lot of wheat
The second charges that in consequence of the
Iessness negligence and fraudulent conduct of the
defendants as common carriers the wheat was lost.
The third and last count charges the defendants with
a conversion of the wheat, and sacks containing it.
It appears from the record that one II. G. Sey-
more was the agent of the plaintiffs during the year
1857, for the purchasing of wheat and other grains
for the mill and dstillery of the plaintiffs in Nash
willie, and as such had authority to appoint and en-
ploy sub-agents for that purpose, and IN the exer
else of the power vested in him, did appoint one
Gordon as such sub-agent and authorized him to
purchase paw for and ship to Nashville, for the use
of plaintiffs wheat and other grains.
Gordon nroceeded under authority and in pursu-
snce of instructions from Seymore purchase lot
of wheat, and contracted with defendants for the
shipment and transportation OF the same from
Trousdales Ferry and other points on the Caney
Fork river, to Sanders Ferry, on the Cumberland
feet of water at the mouth of Caney Fork, about
tbree-fourths of mile above Sanders Ferry. The
defendants took the wheat out of the water and sold
or otherwise disposed of it to their own use.
Upon the trial of the cause the plaintiffs insisted
the defendants had failed to deliver the wheat at
Sanders Ferry, according to the terms OF the con-
tract and that the sinking of the boat and cargo was
owing to the carelessness negligence and fraudulent
conduct of the defendants. The defendants insisted
the terms of the original contract as to the place OF
the delivery of the wheat had been changed, and
that in pursuance of the terms of subsequent con-
tract it was delivered at the mouth OF Caney Fork,
and had in fact been received by Gordon that the
sinking of the boat was owing to the unskiful man.
ner of unloading the boat after Gordon had received
the wheat. and that after the sinking of boat and
cargo they purchased the wheat from Gordon, IN
consideration of small sum due them for transport
taton and upon all these points both parties offered
proof But it is believed all the facts necessary to
raise the questions presented for our consideration
have been recited.
1t does not appear that Gordon at any time COM
municaed to the defendants the facts of his agency
or that defendants had in any manner acquired any
knowledge of the fact that he was only an agent and
not the principal and real owner of the wheat.
The Circuit Judge charged the jury: If Corden
dealt with defendants for himself or under circum-
stances which would satisfy reasonable man that
he was dealing for himself and not for plaintiff then
before plaintiffs could maintain any action against
defendants the defendants must notice plaintiffs in
terest in the transaction"
The Judge further instructed the jury that "the
principle applies to all the counts in the declara-
ton" This, it is insisted, is erroneous, and DO
not believe the rule as laid down by his honor the
Circuit Judge can be sustained either upon prnci-
piles or by authority.
In cases arising upon contracts the principal is
bound by the acts and contracts of his agent, done
with his consent by his authority satisfied and
adopted by him. and in such there arises a re-
ciprocal obligation to the principal the part of
thethird person with whom such contracts made,
and for whose benefit it, and with whose consent
such acts are DONE and in all such the general
doctrine is that the principal the ultimate party
in interest is entitled against such third person,
to all the advantages and benefits of such acts and
contracts of his agents. And it will make no diff
ference in such that the agent is factor, act
ing under a del creden commission nor that the
principal at the time of entering into the contract
is unknown unsupported, nor that the third per-
son has dealt with the agent supposing him to- be
the sole principal The only effect of the last con-
sideration is that the principal will not be permitted
while insisting upon the contract to intercept the
right of such third person in regard to the agent
but he must take the contract, subject to all the
rights of such third person, in the way if
the agent was the sale principal and subject to these
rights the principal may generally sue upon such
contract in the manner as if he had personally
made it. Neither can it make any difference that
the contract be of that character that the agent
maintain suit upon it in his own name
In cases where third person deals with an agent
supposing him to be the principal, and without any
knowledge that the property involved in the trans
action belongs to another such third person. may
quire rights which will be protected and to this end
it can make no difference whether the action be in
the name of the principal or agent. The right to
sue upon the contract entered into by with
in the scope of his power, and to the enjoyment OF
all its benefits and advantages by operation of law
flows to the principal, though he may be unknown,
and the fact that the third person dealing with the
gent believing him to be the principal, cannot de-
feat the rights of the principal Neither will the
fact that the name of the principal was conceded
while such third person induced to contract with
the agent, believing him to be the principal be per-
mtted to defeat the rights of such third person I'M
der or growing out of such contract, even though
the action be brought in the of the principal
and in all such it may be said the principal
steps into the shoes of the agent"
When party has entered into contract under
the assumed character of an agent either conceal
ing falsely representing the of the princi-
pal, when in fact he himself the principal and
party for whose benefit he had, under the assumed
chara cter of agent, made the contract it has been
holden he cannot maintain action upon such con-
tract principal without having first given to the
other party notice of his real character, upon the
ground that the plaintiff had misled the defendant
by assuming situation which did not belong tc
him, and therefore was DounQ TO unQecelVe the de-
fendant before bringing his action.
But we know of no other class OF cases in which
the principal may not maintain his action upon the
contract entered into by his agent in his own name
as well without as with having given notice to de
PENDANT of his interest.
| 1t will be observed that the principles to which
have referred applicable to actions purely e.
! contractu.
The third count in the declaration alleges the tor
tious conversion of the property of the plaintiffs b.
the defendants. The proof is clear that the defend
ants had sold and otherwise disposed of the whea
to their own use, consequently the rule that in SOM
cases notice or demand is necessary to make out
conversion does not apply to this case. And we ar
wholly at loss to conceive of any principle upo1
which defendant can be permitted to insist that
although may have been guilty of the illegal ant
wrongful seizure of the property of A, but at thu
time do so had good reason to believe 1t belonged
! to B, and did not know that it was the property o
A, therefore A, the rghtful owner cannot maintain
an action against me to recover the value of hi
property until he shall first have given notice
his interest in the property. And the fact that tn
defendant may have found the property in the hand
of the agent and may prior to the convention have
! had some dealings with him concerning it withou
the knowledge of his agency, or that the property
belonged to the plaintiff, cannot, we believe i'm
/ pose upon the true owner the necessity of giving
notice to the defendant of his interest in the prop
! erty before bringing his suit.
! To hold the law to be as charged would as we be
leve be productive of much mischief and defeat tn,
| ends Of justice.
| The Circuit Judge charged the jury further
That If Gordon was the agent of plaintiffs to pur
chase wheat and ship it to them and it was sunk il
the river, in the opinion of the court such agency
would confer the power to take care of it. or sell anC
AicnOsa of in boef 20 ,oots