Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-04-04
COURT DECISIONS.
DlGESTED BY w. B. MARTIN.
EXCLUSIVELY FOR
vIHcIMIAN-PlLoT.
Notes Of Cases Recently Decided,
Which are Of lnteres! to
Our People.
CARPENTER & CO. ". CHEMICAL
-FIslss7 co

AN ENTRY MADE BY A BROKER
BEFORE THE CONTRACT is SET
TIED is NOT. EVIDENCE
AGAINST THE PARTY WHO HAD
NOT EMPLOYED HIM.
A COURT SHOULD NO TREFUSE AN
INSTRUCTION If THERE IS ANY
EVIDENCE WHATEVER TO SUP
PORT 1T.
WHERE A PARTY RECEIVES THE
RIGHT NOT TO TAKE PHOS-
PLATE ROCK UNLESS SATISFAC-
TORY, HE MUST ACT IN GOOD
FAITH If HE DECLINES TO
TAKE 1T.
The Court says:
This is an action by Carpenter & Co.
against the Virginia Carolina Chemical
Company TO recover damages for the
refusal of the defendant to take 5000
tons of Tennessee phosphate, spoken
Of in this record as Tennessee rock,
which the plaintiffs claim to have sold
the defendant and which it refused to
accept.
Il appears that such negotiations as
were had between the parties was by
correspondence between one r. e. De-
Jarnette, broker of Norfolk Va. AND
S. Il. Morgan, president of the, defen-
dant company, at Richmond, Va. De-
Jarnette was introduced as Il witness
on behalf of the plaintiffs in the nego-
tiationS with reference to the alleged
sale to the defendant company, he was
asked If he entered such n sale upon
a book kept by him in which such tran
snctions were entered, and he answered
that he did. but said that the entry
was made before he heard from Mr..
Morgan at nll as to whether he would
take the 5000 tons OF Tennessee Rock;
whereupon the plaintiffs offered to in
troduce In evidence the book and entry
made by DeJarnctte therein, to which
the defendant objected, and the OBJ
lection was sustaied by the court.
A broker is primarily the agent of
the party by whom he is originally
employed. and he becomes the agent
of the other party only when the bar
gain or contract Is definitely settled
as to it's terms between the principals
in which case he may act as the agent
OF both parties in making memoran-
dunn of the sale.
That is, however, not the case here
Under the circumstances related hyde
Jarnettc himself he was in no sense
the agent of the defendant company
and authorized to make an entry upon
his books that could be evidence
against the defendant in this suit.
against the defendant in this suit.
Manifestly, therefore, the court below
rightly excluded the entry.
Error is assigned to the refusal of
the court to give the following instruc-
ton:
"You are further instructed that If
you believe from the evidence that If
the plaintiffs agreed to sell to the de-
PENDANT and the defendant agreed to
purchase from the plaintiffs certain
quantity of the article called Tennessee
rock II the defendant could, use the
same satisfactorily, you are instructed
that In determining whether the de-
PENDANT could use the same Satisfacto-
rlly it was bound to act fairly; and If
you believe from the evidence that the
defendant company did not act in good
faith in declining to take the said rock.
or If it. declined to take the same be-
cause 1t could make better terms there
for with other persons, 1T is your duty
TO find for the plaintiffs"
This instruction was refused on the
ground. as stated by the judge of the
court below, that there was no evil
dcnce tending to show q want of good
faith In the action of the defendant in
rejecting the Tennessee rock in ques-
ton and canccllng the alleged con-
tract
This court said in HOPKINS ". Rich
ardson, Graft. 1876: 1t is certainly
correct that no court is required to in
struct the jury on abstract questions
of law not presented by the proofs in
the cause. But this function of de-
termlning whether any proof has been
given Of the Hypothetical case or not,
and If none of refusing to give the in
s1ruction asked for upon it. is one to be
exercised with proper care and great
caution. In plain case of total alb
sence of evidence tending to make out
the supposed case. the court may we'll
refuse to give any instruction based
upon IT, But where there is such evil
dence. or however little weight it may
appear 10 be to the court, or however
INADEQUATE in its opinion to make out
Inc case supposed, 1t is best and safest
Tor the court not to refuse to give in
struction asked for If it PROFOUND the
law cOrrectiv.
:. without discussing the evidence In
this case or intending to express an
opinion as to its weight, it is sufficient
70 say that we do not concur in the
view taken by the court below. that
there is evidence tending to make out
the case Supposed in the instruction.
The gist OF the instruction is that the
defendant was required to act fairly
in refusing to take the Tennessee
Rock alleged to have been Contracted
for by 1t conditionally, and that in de-
termining whether or not the rock was
satisfactory the jury should take into
consideration the evidence bearing on
that point and determine whether +ha
rock was in good faith, not satisfacto-
ry to the defendant
Reversed.
GODBoUT V. ST. PAUL u. d. co.