The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-01-22


would not credit witness theIefori that
witness employed MayeTs * Lowry, AttoT-
ueys. to recover the money, and Afterwards
in February l-66, one Nicely, protesting To
be agent for the Southern Express Company
came to Brandon and called on witness and
Acknowledged the receipt Of the money By
the Southern Express Company, aud said
the company wOald make the loss good, and
that witness heed not have any uneasiness
about the matter that whilst Nicely was
there, witness sent to Lamb. as agent of the
Southern Express Company, another sum Of
500 TO be sent 10 McNair & Cards IN lieu
of the money previously sent but this last
sum was returned to witness by Lamb, be-
fore forwarding it, by the direction OF Nicely
that witness did not know of his own knOwl-
edge that the first 500 did not reach Nc
Nair * Cards. but was always so informed
by them, and Nicely did not deny that the
money had been lost while in the possession
Of defendant that witness has since paid
McNair & Cards tue $500 which the first
remittance was intended to pay that the
defendant had never paid witness the sou
and witness did not know how the money
was lost
Also Gen. Lowry. who testified that May;
ers ~ Lowry were engaged by the piaintln
in February. l-G6 TO recover the SOU, ana
that soon thereafter they received from the
Southern Express Company, an Express Ell
vrlope containing the identical envelope
now produced in court, IN which Lamb had
enclosed and sealed the $500 bill which
plaintiff had delivered to him rs above stated
bv other witnesses and containing also the
same letter from 4. b. Small To Mayors &
Lowry above copied in Lambs testimony
that soon after that letter and enclosure was
received one Nicely appeared at Brandon, as
agent for the defendant to investigate the
alleged loss, and witness conferred win nm
as such, but no adjustment was concluded
with him.
On this testimony verdict was rendered
for the plaintiff and the defendant entered a
motion for a new trial on various grounds
This motion was overruled, and the defend
ant excepted, and brings the case here by
writ OF error.
/ The first error ASST gned Is. that the let
ter of Small set forth in the testimony OF the
witness Lamb. was admitted in evidence,
against the objection of the plaintiff IN error,
without proper proof of the handwriting OF
the person by whom il purported to be writ
ten.
The testimony upon which the letter was
admitted in evidence was, IN substance that
Small was the Superintendent OF the South
ern Express Company at the date OF the let
ter. and that the witness was agent OF the
Company at Brandon, and ao such had Te-
ceived many letters from him about
the business of the Company, and had wrIt-
ten in reply to those letters, and that he be-
4
signature as those received by witness from
him
1t appears that the witness knowledge of
the party's handwriting was acquired
through correspondence carried on between
them in relation to the business of the Com
pauy in which they were both engaged
This brings it fully within the rule, admit
ting such proof of handwriting, which Is
thus settled by Phillips If a witness has
received letters on subjects of business,
which can be proved TO have been written
by particular person, or letters of such
nature as make il probable that they were
written by the hand from which they pro
fess to come, he may be permitted to speak
of that persons handwriting ,. Phillips
Evid, 500, (4th Amer. Ed. with Corven Il
Hills notes, by Edwards) And the cases
cited in the notes in that work fully sustain
the sufficiency of the proof of handwriting
here
But if this testimony had been insufficient
to prove the handwriting, there Is other ev-
ideuce in the case which clearly establishes
the authenticity of the letter; and as this
case Is brought up on a motion for a new trial
/ oycrrulcd, the Judgment would not be re-
versed on isolated exceptions taken on the
ground that the proof introduced upon the
point of handwriting was insufficient. when
II appears from other evidence that the
paper introduced was authentic. 1t appears
by the testimony of the witness Lamb, given
after the Introduction of the letter. and like
wise by the testimony of Lowry, that Nicely
came to Brandon shortly after the date of
the letter, as the agent of the defendant to
attend to the matter of the lost money, as
the letter stated he was requested to do
And that fact, added to the other testimony
of Lamb, would remove all doubt as to the
I commences of the letter.
, 1t is insisted that there is error in the
second and fourth instructions given at the
instance of the defendant in error
The second instruction Is as follows: THAT
the letter of the Superintendent of the
southern Express COMPANY appointino
Nicely an agent to investigate the loss of the
money, Is circumstance which the Jury
may consider to enable them TO determine
whether or not SAID company received said
money and if they believe from the evil
dence said company received said money and
the same was lost by them, then they are
liable TO Thornton and they must find for
him"
1t is objected that this instructs the jury
as to the weight of evidence; but it is clear
ly not of that character. 1t is in substance
no more than a statement, that the letter
was competent evidence before them which
they might give such weight as they consid-
cred ii entitled to, in determining whether
or not the money was received by the de-
PENDANT. The letter, with its accompanying
circumstances, certainly was entitled to
-AoNS ttuSAtACAdt tbiiS pom the point stated.
1t referred in terms TO the envelo De in which
the money was enclosed; and the witness
Lowry states that he received, enclosed with
this letter, the same envelope in which Lamb
had enclosed and sealed the $500 bill, which
the plaintiff had delivered to Lamb This
went strongly TO prove that the defendant
received the money; for otherwise how did
the company come in possession of the en-
Velope IN which II was enclosed and sealed
by Lamb The letter of the Superintendent
OF the company, together with the envelope
received by Lowry with it, were therefore
very proper to be considered by the Jury
and that Is the substance of the instruction.
The fourth instruction Is. THAT if the
jury believes from the evidence that the
Southern Express Company received the
package of $500 and that it afterwards sent
the envelope to Brandon without the money
IN 1t, that Is circumstance from which the
jury may infer that the contents were alb
stracted from the envelope whilst in the pos
session of the company"
This Is likewise objected TO rs being an in
stTuCtlon on the weight of evidence But if
the jury believed the facts stated in il it was
impossible to avoid the conclusion that the
defendant was liable. These facts were vital
to the case. to-wir: that the d,ttRdaEt re-
ce'red TIE money and afterwards sent the en-
velope containing it to Brandon without the
money. If the court had instructed the
jury that If they believed them. they should
find for the plaintiff il would not have been
Objectionable; because these facts if true,
We're decisive of the case. Much less was it
Objectionable to direct them that if they be-
heNed these facts. they might infer that tie
money was distracted from the envelope
while in the defendants possession; for that
conclusion was unavoidable.
). The next error assigned is the refusal of
the first and second instructions asked By the
defendant
The first is-.'If the jury believe from the
evidence that the money in controversy was
de lvered to the Commercial Express Com
peuy TO be carried to New Orleans, and that
there was no contract between the plaintiff
and the Southern Express Company that
the Express Company is not liable in this
action"
The evidence shows, that upon the transfer
Of the effects Of the Commercial Express 10 the
defendant, the latter assumed all the liabilities
Of the former; which included the obligations
20 the plaintiff in this action. This rendered
the defendant liable 10 the plaintiff for the
carrying and delivery of the money. without
any express contract between them TO that
effect. And in this view the defendant was
liable a the first