THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois.
The plaintiffs in error were auctioneers and commission merchants in Chicago, Illinois, the firm being composed of Joseph Filkins, J. P. Phillips, Elihu Granger, and Edward H. Castle. An action on the case was brought against them by Bullard, a citizen of the State of New York. The declaration contained five counts, viz:
1. That these four defendants were partners, doing business in Chicago, as auctioneers and commission merchants, under the firm and name of Filkins, Phillips, & Co.; and
2. That certain goods of plaintiff were in the custody of defendants, as such partners, for sale on commission.
3. That, as such partners, defendants sold them to Edmund S. Castle.
4. That E. S. Castle, at the time of the purchase, was insolvent, and not fit to be trusted.
5. That defendants knew at the time that E. S. Castle was insolvent, and effected the sale fraudulently.
The plea of not guilty denied each of these allegations.
The verdict was for the plaintiff, in the sum of $2,983.32 and costs.
The bill of exceptions taken upon the trial occupied sixty pages of the printed record, and recited substantially the evidence given to the jury.
In the course of the trial, the following proceedings took place:After the evidence for the plaintiff had closed, and he had rested his case, there appeared to be no evidence connecting Granger with the transaction, other than what might exist from the fact of his being one of the partners.
And thereupon defendant, Elihu Granger, moved the court as follows: The defendant, Elihu Granger, moved the court to direct the jury to render a verdict of nonsuit, or that the court would order a nonsuit to be entered as to defendant, Granger, upon the ground that the evidence given to the jury by plaintiff did not tend to charge this defendant. This motion the court overruled, and said defendant, Granger, then and there excepted to the decision of the court. And thereupon all the defendants moved the court for a nonsuit as to Granger, upon the ground that the evidence in the case did not tend to charge him. This motion was overruled by the court, to which decision of the court said defendants, and each of them, then and there excepted; and thereupon said defendants asked the court that said jury might be permitted to retire and consider whether they found the evidence in the case sufficient to charge said defendant, Granger; and if not, that the jury might find said Granger not guilty. And the defendants, Castle, Filkins, and Phillips, each urged upon the court, as a reason for this course, that they desired to use said Granger as a witness for their defence if he should be acquitted; but the court overruled this application and motion, to which decision the defendants excepted. Other exceptions were taken as to matters of evidence which need not be here recited.
After the evidence was finished, the court gave the following instructions to the jury, which are inserted in order to show the view of the court below, although the defendants excepted only to the two first:
The court, after saying to the jury that the original and amended declaration alleged in substance that the defendants fraudulently sold the goods for plaintiff to an irresponsible person, and also that, in consequence of false and fraudulent representations made by them, the plaintiff consented to the negotiation and sale by them of the goods to an insolvent person, by which plaintiff sustained loss, and that one of these allegations must be proved, among various other instructions, gave the following to the jury:
1. If the goods were in the custody of the defendants for sale on commission, and one or more of the partners made false and fraudulent representations as to the party to whom they were to be sold by the defendants, then the partnership would be liable, if in consequence of such representations the plaintiff consented to the sale to that party, and the sale was actually made by the firm to the party.
2. If, however, these goods were not in the possession of the defendants for sale, but were there merely for safe keeping, and one or more of the partners made false and fraudulent representations as to the solvency of a person to whom it was proposed to sell the goods, and in consequence of such representations the goods were sold and delivered to that person by the plaintiff, or he consented to their sale, then the firm is not liable for such false and fraudulent representations, unless the firm, as a firm, were party to such representations. That the false or fraudulent representations made by one of several partners, in order to bind the firm, must be made in the course of and in relation to the business of the firm.
3. If the sale was made by the plaintiff alone, or by the plaintiff through E. H. Castle as his agent, (acting in that behalf, and not for the firm,) then, no matter what were the representations by E. H. Castle, the jury must find for the defendants.
4. Unless the sale was made or negotiated by the firm, the jury should find for the defendants.
5. That the fact of a guaranty of the payment of a debt by Filkins is not evidence of fraud, nor of want of solvency at that time. There is no presumption that the return of the officer is untrue.
6. That, so far as the motives of the defendants are concerned, no fact proved is to be considered, unless the knowledge of such fact is brought home to such defendants.
7. That all the subsequent transactions mentioned by the witnesses have nothing to do with the main fact of the case, further than this: they are only circumstances to be considered, which may throw light upon the motives of the parties; that if the subsequent acts and declarations can be accounted for reasonably without assuming a fraudulent motive in the transaction of the 8th November, such circumstances are not to be considered or regarded by the jury as entitled to any weight. And they are to have no influence until the jury are satisfied, from the evidence, that the sale was made by or through the defendants, as commission merchants; that E. S. Castle was not responsible as a purchaser, on the 8th of November, the time of sale, and that the defendants knew him to be irresponsible.
8. That, unless the jury believe that defendants acted fraudulently, as charged in this declaration, it is entirely immaterial whether they, or any of them, acted fraudulently or otherwise in after transactions, or other transactions.
9. That fraud could never be presumed, but must be clearly proved, but it may be established circumstantially as well as by direct proof.
To the first and second instructions, as above stated, the defendants then and there excepted, but to none others; the other instructions above set forth being given to the jury at the request of the counsel for the defendants.
The court also said to the jury, that all the instructions given by the court were to be taken and considered together.
The case was argued by Mr. Dickey for the plaintiffs in error, and by Mr. Gillet for the defendant.
Mr. Dickey thus noticed the points in the case:
At the close of the plaintiff's evidence in chief, defendants each claimed that a separate verdict be allowed as to Granger, against whom there was no proof, in order that the other defendants might use him as a witness. This the court refused, and defendants excepted.
This was erroneous. There was once some difference of opinion as to this right, but in Phillips's Evidence, 8th edition, 59, it is said: 'It is now well settled, by the unanimous opinion of all the judges, that a defendant, (in torts,) against whom plaintiff adduces no proof, is entitled to a separate verdict at once, on the close of the plaintiff's case.'
See, also, 2 Starkie's Ev., 11, 798, 799.
Whether there be any evidence, is a question of law.
1 Greenleaf, sec. 49; Phillips's Ev., 513.
And while it is true, this court will not review a question of fact, yet no court can review the law of a case without looking to the facts to which it is to be applied.
All the extraneous evidence, in any event, was irrelevant until plaintiff had laid a foundation for such proof, by giving evidence of the contract set up in the declaration between plaintiff and defendants as partners; and to do ...