{ "id": 8727598, "name": "Lyon vs. Tams & Co.", "name_abbreviation": "Lyon v. Tams & Co.", "decision_date": "1850-07", "docket_number": "", "first_page": "189", "last_page": "212", "citations": [ { "type": "official", "cite": "11 Ark. 189" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "6 John. Rep. 72", "category": "reporters:state", "reporter": "Johns.", "opinion_index": -1 }, { "cite": "17 Verm. Rep. 477", "category": "reporters:state", "reporter": "Vt.", "opinion_index": -1 }, { "cite": "14 Serg. & Rawle 30", "category": "reporters:state", "reporter": "Serg. & Rawle", "opinion_index": 0 } ], "analysis": { "cardinality": 1432, "char_count": 48281, "ocr_confidence": 0.506, "pagerank": { "raw": 3.530329747297379e-07, "percentile": 0.884272982710575 }, "sha256": "93316a507a27aeb88dafc415d77e4846d0cd80c06534a772e37b7180b543b52c", "simhash": "1:2eaaf5491a47f0c6", "word_count": 8421 }, "last_updated": "2023-07-14T21:09:57.742091+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lyon vs. Tams & Co." ], "opinions": [ { "text": "Mr. Justice Scott\ndelivered the opinion of the court.\nThis case is presented on bill of exception to the overruling of a motion for a new trial. It appears from the testimony that the appellant, a merchant of Batesville, Ark., became the gratuitous agent of the appellees, who were merchants of the city of Philadelphia, to compromise a claim of the appellees on Burr & Tucker of the former town, and to receive from them the proceeds in money to the use of the appellees. It does not appear that any instructions were given to the appellant to transmit the money from Batesville to the city of Philadelphia, and none can be implied from the nature of the transaction. The appellees, however, wrote to the appellant that \u201cif in fact they were not much pressed for funds\u201d at that time they would not have made to Burr & Tucker such an offer of compromise. But this letter does not justify any farther inference than that the appellant was to receive and keep appellees\u2019 money as their gratuitous bailee.\nThe contract then was a deposit, a naked bailment of money to be kept for the bailor without recompence; and consequently, if the appellant, alter the receipt of the money, had remained r passive and the money had been lost from his possession, his liability would have depended upon the ascertainment of the fact whether or not the loss had been caused by gross negligence on his part. He did not, however, remain passive, but attempted without authority to transmit the money to the appel-lees and it was lost by the failure of his agent in New Orleans while in transitu, between Batesvillo and Philadelphia. This attempt was made the next day alter the receipt of the money and the appellees were promptly advised through the mail of the remittance. But however honorable and praiseworthy was this elfort to anticipate the expressed wants of the appellees and in this to do them kindness, the law from enlarged views of sound public policy sternly animadverts upon this well meant procedure; and holds the plaintiff liable for the loss unless he can extricate himself by some subsequent ratification of his unauthorized act. The question in such case being, not whether the party has acted from good motives and without fraud, but whether he has done his duty and acted according to the confidence reposed in him. For having exposed his principal to a\u201dj risk to which he did not consent, by shifting upon another the/ personal trust and confidence reposed in himself; and thus go-| ing beyond the confines of his authority, the source of which was his principal\u2019s opinion of his personal prudence, skill and integrity, his unauthorized act disrobes him of all cover from the principle of law we have just mentioned \u2014 there being no place for its application to results which flow from unauthorized acts.\nButaratification of this unauthorized act of remittance will save him from loss if it shall appear in the sequel that by this means he has had a sufficient new delegation of authority and has faithfully discharged his corresponding duties. Because the legal ef-feet of the subsequent ratification, of a given unauthorized act is equivalent to a previous delegation of authority to do that particular act, the ratification relating back to the inception of the transaction. This being the universal legal effect of ratification unless perhaps in cases where third persons acquire rights after the given act is done and before it receives the recognition and sanction of the principal, its retrospective efficacy in such cases being subservient to such intervening rights.\nThe vital question then in the case at bar the solution of which must result in the fixing of loss upon one of the two innocent contending parties, is whether or not the appellees ratified the attempted remittance.\nThe authorities, all agree, that although ratification may be implied as well as express, nevertheless there can be no ratification binding upon the principal, which was not made with a full knowledge of all the material circumstances of the case. (9 Peters R. 629.) Hence the rule that implied ratification extends only to such acts of the agent as were known to the principal at the time, (Thorndike vs. Godfrey, 3 Greenl. 429); and if the rati ideation be without such knowledge of material facts it will not be obligatory whether this want of knowledge arise from designed or undesigned concealment or misrepresentation of the agent, or from his mere innocentinadvertance : and this, whether the question arise between the principal and his agent, or between the former and third persons. Story on Agency, sec. 243, p. 288, 289.\nThen, in the case at bar was there any concealment of any fact or circumstance connected with the attempted remittance material for the appellees to know? It was communicated to them that the amount of their claim against Burr & Tucker had been collected and remitted to Walton & Sheafe, of New Orleans, with instructions to them to transmit to the appellees at the city of Philadelphia, without delay, by draft upon the east. But the mode of remittance between Batesville and New Orleans was not communicated. In order to estimate the materiality of the fact not communicated and consequently never ratified, as rati-ideation can only be of the facts communicated, the relative situation of the parties in point of locality and every other point of view must be considered. Among these it may be important to remember that the appellees were in Philadelphia, a great commercial city, and the appellant, their agent, at Batesville, an inconsiderable town in the interior of Arkansas, where commercial facilities were few. A place, which had scarcely been reached by the spray of commerce, much less had the depths and shoals and currents of trade at this point, been marked upon the great commercial -chart, so as to afford the appellees any data for the approval or disapproval of any mode of remittance that might have been adopted by their agents and communicated to them, or for the suggestion of a mode themselves. Then, so far as their interest was concerned it was surely to their advantage to be committed t\u00a9 no particular mode of remittance \u2014 at most but an incident to the power of remittance \u2014 as they thereby secured a guarantee of such a mode as the appellant, as a man of ordinary prudence and skill, with full knowledge of the course and usages of trade -in this particular region, would adopt for remittances of his own money to New Orleans.\nNot so, however, to the same extent, either as to the bailee in New Orleans, or as to the mode of remittance from that city to Philadelphia; for as to these particulars the appellees from their commercial position enjoyed facilities for data upon which to form correct conclusions. But even as to these latter particulars, we would hesitate before we would declare that a failure to communicate, even them, would invalidate a ratification of an act of remittance which had been communicated only in general terms, as that it had been made through a respectable commercial agent in New Orleans. And this for the reason that we have already given, that is to say, the mode of remittance is. but incidental, and when noneis prescribed by the principal, it is distinctly prescribed by the law. Then we cannot regard the failure of the appellant to communicate to the appellees the mode of remittance that he had adopted between Batesville and New Orleans as a circumstance so material as to work the invalidation of the subsequent ratification of the unauthorized act of remittance, if any such ratification was made :and whether or not there was such ratification, the law and the testimony will determine.\nJudge Story, in his work on Agency, when speaking of the efficacy of silence and acquiescence to work a ratification, says (sec. 225,p. 302,) \u201c In the ordinary course of business between merchants and their correspondents, it is understood to be the duty of the one party receiving a letter from the other to answer the same within a reasonable time, and if he does not, it is presumed that he admits the propriety of the acts of his correspondent and confirms and adopts them. This presumption seems now in favor of commerce to be universally acted upon. And therefore if the principal having received information by letter from his agent touching the business of the principal, and does not, within a reasonable time, express his dissent to the agent, he is deemed to approve his acts and his silence amounts to a ratification of them.\u201d\nAnd again, he says, (Sec. 253, p. 297,) when speaking of implied ratification by the acts and proceedings of the principal in pais, \u201cIt is by no means necessary that there should be any positive or direct confirmation. And, for this purpose, the acts and conduct of the principal are construed liberally in favor of the agent.\u201d And, among the numerous authorities cited by him to sustain these positions, is the case of Bredin vs. Duberry, (14 Serg. & Rawle 30,) where the court, by Gibson, J., says : \u201cI take it to be indisputable that a principal who neglects promptly to disavow an act of his agent by which the latter has transcended his authority, makes the act his own. He is bound to disavow it at the moment the fact comes to his knowledge.\u201d This latter enunciation of the rule seems too strongly expressed for general application, although in many cases where the agent has placed himself in a predicament where loss may accrue to him from delay on the part of his principal to disavow the act, or where the transaction may turn out a profit or loss according to the circumstances, there would seem much of justice in its application. For it would seem unjust and unreasonable in the principal, by delaying his election to be bound or discharged to secure himself the profit or avoid the loss according to the event; and by this means work an unmerited injury to an honest and well-intentioned agent, who has acted in the premises with the best motives and in good faith. Prince vs. Clarke, 1 Barn. & Cress. 186. Courcier vs. Ritler, 4 Wash. C. C. R. 553.\nThe safer general rule, however, would seem to be that which Judge Story enunciates, and which is well sustained by almost all the authorities, that is, that the dissent must be expressed in a reasonable time after the information has been received, and thus the circumstances of each particular case will be regarded in determining the degree of promptitude incumbent upon the principal. As, if the danger of loss by delay be imminent, any thing short of an instantaneous disavowal would be unreasonable, and if not. so great, then a corresponding abatement of the rigour of the rule graduated upon principles of justice and fair dealing.\nIn the case at bar, the remittance to New Orleans was made about the middle of April, and it is fairly inferable from the letter of the appellees of the date of the first of June, (as it seems suggested alone by the \u201cdelay\u201d on the part of Walton & Sheafe,) that the appellees had been promptly advised of this unauthorized act of remittance, yet there is no evidence in the record that they ever complained of it, excepted to it, or attempted to repudiate it until some time in the \u201c fore part of the month of August\u201d following. In the mean time, in the latter part of the month of May preceding, Walton & Sheafe had failed. Then, if the position of ratification in this case was rested solely upon this ground, there would seem clearly abundant reason to hold that this repudiation was unreasonably delayed, and that the conduct of the appellees amounted to a complete ratification.\nBut the appellees were not all this time silent, although they did not complain of, or disavow, the act of remittance, which, as we have seen, was promptly communicated to them; for on the first of June, they wrote to the appellant, not to complain of or disavow this act, but to inform him that the money had not yet been received by them and to make inquiry in the premises, but intimate in no way their dissatisfaction with any act of the appellant. As, at the date of this letter, they had been in possession of the advice of remittance a sufficient time to become weary of delay, and had this circumstance of \u201c delay\u201d to arouse their suspicion that there might be something wrong in some quarter, they certainly had time enough to reflect upon the affair and make their election whether or not to repudiate or confirm. And the event proved that if they had promptly repudiated, the appellant might have probably saved himself from loss. Because, upon the hypothesis, which we have seen is well based, that the advice of remittance was promptly given, intelligence of repudiation might have reached the appellant, in the due course of the mails, by the middle of May at the most; and the evidence shows that the produce, or some part of it at least, was not sold until about the last of that month.\nThis letter, then, when considered in connection with all the testimony in the case, would seem to amount of itself to a ratification.\nHow, then, has it happened that the jury, in the face of the law and the testimony, has found a verdict against the appellant ? Manifestly this has occurred from their having been misdirected by the court in some of the instructions, and their minds drawn off from the true point at issue m the case. And these misdirections mainly relate to the matter of remittance in produce, which legitimately cut no important figure in the case.\nThe second instruction asked for by the appellees, ought to have been refused in the terms in which it was asked, because, unless it had been qualified as the first was, it was well calculated to mislead the jury.\nThe third instruction was much more objectionable, as it was inevitable that if the jury regarded it at all, they would be lead estray. And the same remark may be made as to the fifth of' these instructions. All this is manifest when we recur for a mo-menfc to some of the principles already laid down and to the testimony.\nWe have seen that the legal effect of ratification is the investiture of new authority relating back to the inception of the transaction; and that, at the very least, remittance from Bates-ville to Philadelphia by the way of New Orleans, was ratified. How, then, stands the case ? Clearly in this wise: Originally, the appellant had authority only to collect and keep the money; but now, by virtue of ratification, he has additional authority to remit it to the appellees in Philadelphia.by the way of New Orleans. And no mode of remittance having been prescribed originally or subsequently by ratification, the law itself prescribes a mode : and that is, that it shall be transmitted in that mode in which a man of ordinary prudence, skill and diligence would adopt in view of the current and usage of trade at his locality, for the transmission of his own money. The true question, then, was not whether the remittance was made in any one given mode, because none such had been prescribed either by the principal or by the law, but whether or not, in adopting the mode that was actually adopted, the appellant was guilty of gross neglect. For, having been clothed with authority to remit by the operation of the law of ratification, he was again enrobed with the covering of this principle, of which, in the outset, he had disrobed himself by an act of remittance which was then unauthorized. After the ratification, the appellant stood in reference to the question that we are now considering identically as if he had been originally invested, not only with authority to collect the money, but also had then coupled with this authority an additional authority to remit the money from Batesville to Philadelphia by the way of New Orleans. This being so, he had but so to perform the duties incumbent upon him as to be clear from the legal imputation of gross neglect. And the evidence abundantly shows that he did so. The character of the agents selected in New Orleans, was, at the time of the selection, unexceptionable ; and the mode of .remittance adopted alike unexceptionable in view of the circumstances of the case and the course and usages of trade.\nThe fact that the produce shipped was not shipped in the name or on account of the appellees, but of the appellant, so much pressed in argument as a circumstance against the appellant, is, on the contrary, a pregnant circumstance in his favor, as it show's clearly that, so far from the appellees\u2019 money having been invested in the produce, that the latter was but the medium of its transmission to New Orleans \u2014 a mere conduit pipe through which it passed to that city \u2014 and a much safer mode of remittance than by the actual transmission of the specie itself, as it appears from the testimony that it was impracticable to insure the latter and that the former was actually insured.\nThese instructions, then, had a direct tendency to mislead and bewilder the jury, and draw off their minds from the true issue in the case, and to turn them upon matters of no import as connected with the issue. In all this there was manifest error. But there was no error in the. refusal to permit the witness, Fontaine, to answer the question propounded to him that was saved by exception.\nUnder the pleading and evidence in this case, the appellees had a right to recover the $73 70, paid over by Walton & Sheafe to the appellant, because this was a part of their money which had been remitted to that house through the medium of the produce. And they also had a right to recover- the additional sum of the difference between the aggregate sum made up by adding the $300 in specie to the nett amount of the proceeds of the produce (which aggregate sum was necessarily the true amount of the actual remittance) and the sum of $865 31, which was the sum collected from Burr & Tucker. That is to say, if that aggregate sum was $788 19, as it seems to have been by the deposition of Walton, then, as $865 31 was the amount collected of Burr & Tucker, it results that $77 14 was the additional sum that they had a right to recover. And this because the money of the appellees was never actually invested in produce, so as to subject them to profit or loss by the fluctuation of the market, as it would have been if a bill of exchange on New Orleans had been purchased in Batesville in their name; but this adventure in the produce was an adventure of the appellant: And the office of the testimony going to show that the produce, added to the $300 remitted, was worth more when it was shipped from Batesville than when it was sold in New Orleans, is only to relieve the appellant from the imputation of bad faith in giving advice to the appellees that the whole of their money had been remitted, when, in truth, either from the fluctuation of the market or bad conduct of Walton & Sheafe, the whole sum had not been remitted by the sum of $77 14.\nIn the light of these views, then, it is our opinion clearly that the court below erred in refusing the motion for a new trial, and for this error the judgment must be reversed, a new trial awarded, and the cause remanded to be proceeded with.", "type": "majority", "author": "Mr. Justice Scott" } ], "attorneys": [ "Fowler, for the appellant.", "Byers & Patterson, contra." ], "corrections": "", "head_matter": "Lyon vs. Tams & Co.\nWhere a gratuitous agent collects money for his principal, he is liable for Its loss only in case of gross negligence on his part.\nIf he attempt to transmit the money without instructions from his-prineipal, authorizing him so to do, and it be lost in transitu, he is liable for its loss, unless the principal ratify the act of transmission.\nThe legal effect of a subsequent ratification of such unauthorized act, is equivalent to a previous delegation of authority to do the particular act, the ratification relating back to the inception of the transaction \u2014 unless rights of third persons intervene.\nA ratification may be implied or express, but there can be no ratification binding on the principal unless it be made with a full knowledge of all the material circumstances of the case.\nHence the rule that implied ratification extends only to such acts of the agent as ara known to the principal at the time, and if the ratification be without such knowledge of material facts, it will not be obligatory, whether this want of knowledge \u25a0 arise from designed or undesigned concealmant of the agent, or from his mere innocent inadvertence \u2014 and this, whether tile question arise between the\u00a1principal and his agent, or between the former and third persons.\nPlaintiffs, merchants of Philadelphia, made defendant, of Batesville, Ark., their gratuitous agent to collect a debt due them by a firm at Batesville ; defendant collected the money, and on the next day, without' instruction, sent part of it, with a shipment of produce to a house of commission merchants in New Orleans, with instructions to sell the produce immediately, and with the proceeds, and money sent, to purchase a draft for the amount collected for plaintiffs by defendant, and forward it to plaintiffs at Philadelphia. Defendant also wrote to plaintiffs immediately, informing them that he had collected the amount of their claim, and remitted it to the house in New Orleans with instructions to transmit to them by draft without delay, hut did not communicate the mode of remittance from Batesville to New Orleans: Held, that in view of the relative situation of the parties in point of locality, the ordinary mode of making remittances from Batesville to the eastern cities by shipment of produce to New Orleans, &c., the failure of defendant to communicate to plaintiffs the mode of remittance adopted by him, between Batesville and New Orleans, was not a circumstance so material as to invalidate a subsequent ratification of the act of remittance.\nWhen the agent in such c\u00e1se makes a remittance without authority, and informs the principal of the remittance, the dissent of the principal must be expressed in a rea-sonabletime after receiving information of the remittance, otherwise the act will be regarded as ratified by implication ; and the circumstances of each particular case will be considered in determining the degree of promptitude incumbent on the principal.\nIn this case the remittance was made, in tho mode above stated, about the middle of April, and the plaintiffs promptly informed thereof \u2014 they did not complain of tho mode of remittance, or attempt to repudiate the act, until August following ; and in the mean time, in the latter part of May, the house in New Orleans through which the remittance was attempted to be made, had failed : Held, that by this delay to repudiate the act of remittance, they impliedly ratified it.\nWhen no mode of remittance is prescribed by the principal, the law prescribes a mode, and that is, that it shall be transmitted in that mode in which a man of ordinary prudence, skill and dllligence would adopt, in view of the current and usage of trade at his locality for the transmission of his own money.\nIt is incompetent for a witness to give his opinion as to the legal liability of the agent in such case.\nHeld, that plaintiffs were entitled to recover of defendant the difference between the amount collected by him for them, and the nett\u2019amount of the proceeds of produce shipped to the house in New Orleans added to the money sent with the produce\u00bb because the produce was used by defendant as a means of remittance, and plaintiffs were not liable to loss from fluctuations in market.\nAppeal from, the Independence Circuit Court.\n' James Tams, Earvin Tams and John Tams, merchants and partners under the style of Tams & Co., brought an action of assumpsit against; Aaron W. Lyon, in the Independence circuit court.\nDeclaration alleged that on the 24th day of April, 1846, defendant was indebted to plaintiffs in the sum of $865 31, for money before that time by them lent and advanced to defendant, and laid out and expended for him &c. And also in a like sum for money by defendant had and received to and for the use of plaintiffs.\nPlaintiffs filed a bill of part\u00edculas, as follows :\n\u201c To cash received by said defendant for the use of plaintiffs in 1846, $865 31.\u201d\nThe defendant pleaded non-assumpsit, the cause was submitted to a jury, and verdict in favor of plaintiffs for $995 06 damages.\nDefendant moved for a new trial on the grounds :\n1. That the verdict was contrary to evidence, and instructions of the coui\u2019t.\n2. Contrary to law.\n3. Excessive damages.\n4. The refusal, and giving of instructions by the court.\n5. The exclusion of evidence offered by defendant.\nMotion overruled, and bill of exceptions taken by defendant setting out the evidence, instructions &c.\nOn the trial plaintiffs proved by Edwin S. Bun\u2019, that they were merchants of Philadelphia; that, to the best of his recollection, in the spring of the year 1845, possibly of 1846, the defendant presented a claim to him in favor of the plaintiffs, which was a note for $895 03, and which he said he had received from the plaintiffs, with a request to call on him, Burr, and Tucker, against whom the claim was, for payment; and that he, Burr, offered to pay it if the defendant would deduct ten per cent, of the amount, the usual attorney\u2019s fee for collection.\nAnd proved by Isaac Tucker that the claim was contracted by him, in the name of Burr and himself in anticipation that he and Burr would go into partnership, by purchase of goods from the plaintiffs of upwards of $900, and that he, Tucker, about the middle of April, 1846, paid on the claim to Capt. Porter $800 in gold and silver, and from $60 to $61 or $62 in bank paper, ten per cent, on the whole amount being deducted.\nPlaintiffs proved by Wm. Byers, of thefirm of Byers & Patterson, attorneys at law, that sometime in the fore part of the month of August, 1846, plaintiffs sent to him and Patterson the claim upon which the suit was brought for collection. That on the 18th August, 1846, he called on the defendant, in Batesville, and demanded of him the money collected by him for plaintiffs of Burr & Tucker. Defendant admitted to witness that he had received the money of plaintiffs from said Burr & Tucker to the amount of $865 31; that the plaintiffs had sent him the note on Burr & Tucker to present, and receive the money as aforesaid, and that in receiving the money, he had acted as the friend of the plaintiffs without intending to charge them anything for his trouble. That he had immediately shipped to New Orleans produce consisting of corn, wheat and cotton, and about $300 in money to Walton & Sheafe, his commission merchants, and instructed them to sell the produce immediately, and with the money and proceeds of sales of produce, to buy a draft on Philadelphia to the amount of money which he had received of Burr & Tucker, and to forward the same to the plaintiffs; but that said Walton & Sheafe had not obeyed his instructions. And that a few days before that time he, the defendant, received an account current from Walton & Sheafe acknowledging that they had in their hands, and which stood to his credit, upwards of $700, and enclosed to said defendant about $80, proceeds of sales of cotton; and the next day defendant sent to witness a notice in writing, as follows: . .\n\u201c Batesvjlle, August 19, 1846.\n\u25a0 Mr. Byees \u2014 Dear Sir : In answer to your request of yesterday, respecting the disposition made of amount received of Burr & Tucker, in favor of James Tams & Co., Philadelphia, permit me to state that I forwarded, in April last, to Walton & Sheafe about $300 in cash, near 1,000 bushels of corn, 352 bushels of wheat, and four bales of cotton, with directions to sell immediately and forward a draft for the amount received to Mr. Tams. My reason for consigning produce instead of money for that debt was the safety of Mr. Tams : the produce was insured, the money could not be. Contrary to my expectations, since the failure of the house they have retained the money and proceeds of produce, except the sales of cotton, which was received about two weeks since, amounting to about $73 70. Sheafe acknowledged, under date of May 29, an indebtedness for cash and produce of $788 17. If he had sold according to instructions, the amount would have been nearly or quite $100 more, but I have now some reason to believe that he was anticipating a failure, and intended to hold on to all he could get.\nRespectfully, yours,\nA. W. LYON.\u201d\nWhich was read to the jury without objection.\nMr. Byers further testified, that, at the time he made said demand, defendant offered to pay over to him, as plaintiffs\u2019 attorney, the said sum of $73 70, and wished him to take Walton & Sheafe for the amount in their hands, which he refused to receive, unless the defendant would pay over to him the entire sum of money demanded, and refused to recognize the transaction between defendant and Walton & Sheafe as binding upon plaintiffs \u2014the amount demanded by him was $865 31, which defendant refused to pay.\nDefendant proved by Williams, captain of the steamboat Gen. Morgan, that, in April, 1846, defendant shipped on said boat to Walton & Sheafe, commission merchants of New Orleans, a quantity of wheat, corn and cotton, and at the same time sent, by witness, to Walton & Sheafe, $300 in specie, with a letter of instructions to them, and also verbal instructions, to sell the produce immediately, and, with the proceeds thereof and the speeie sent, to purchase a draft, and send it immediately to the plaintiffs in Philadelphia; which produce, specie, instructions, &c., witness promptly conveyed to New Orleans, and delivered them to Sheafe, of the firm of Walton & Sheafe, who promised witness to execute the instructions immediately.\nThat, on his next trip down with said boat, defendant again requested witness to call upon Wait\u00f3n & Sheafe, and urge them to purchase the draft, and send it to plaintiffs immediately, if they had not already done so; or to withdraw the funds from their hands, and purchase a draft himself, and send it on to plaintiffs. That when witness reached New Orleans, (which was in June, 1846,) he called upon Sheafe, (Walton having gone to Mexico in command of a regiment of volunteers,) and Sheafe then told him that he had not closed the business so he could then settle it up, but that he would purchase the draft, as he had been at first instructed, and send it in a short time to plaintiffs in Philadelphia.\nWitness further testified that, at the time defendant shipped said produce to Walton & Sheafe, they stood as fair, and their character was as good as any house of like kind in New Orleans; and that most of the business of White and Arkansas rivers was intrusted to and done with them as commission merchants. That witness, at that time, did not know of any exchange to be then had at Batesville on the eastern cities; and that the brother of witness, a merchant of Batesville, and others of that place, generally made their remittances of money to Philadelphia, and other eastern cities, by sending to New Orleans and having a draft purchased there, and from thence remitted to the east.\nThat defendant had said produce insured, and shipped in his own name.\nOn cross examination, witness stated that he could not recollect positively and precisely what the instructions were that he delivered to Walton & Sheafe. That defendant then said it was safer to send the produce than the money; and that the produce would be sufficient for the purpose for which it was sent; and that Walton & Sheafe failed after they had received the said produce. The market for produce in New Orleans was fluctuating.\nFontaine, a witness for defendant, testified that he had been engaged in the mercantile business in Batesville, and formerly in St. Louis, Mo., and that merchants of both places sometimes make their remittances of money to the eastern cities in money, and sometimes in produce, by way of New Orleans; and that, in the spring of 1846, and generally, it was, and is, very difficult to get drafts, bills of exchange, or other safe means of remittances to the eastern cities at Batesville. That such remittances from Batesville were oftener made in produce than in money by way of New Orleans; and that produce, when insured, was considered the safest mode of making such remittances. It had not been the custom to take a bill of lading for money shipped From Batesville to New Orleans.\nFontaine and Foivler also testified that at, and for some time before, the middle of April, 1846, the house of Walton & Sheafe was reputed to be solvent, of good character, and did the principal commission business of White and Arkansas rivers.\nFontaine said, on cross examination, that his remarks, as to remittances in produce, were applicable only to the business, and operations of the house with which he was connected.\nDefendant\u2019s attorney then propounded the following question to Fontaine:\n\u201c According to the custom of merchants, where one merchant in Arkansas collects money for another doing business in an eastern city, without compensation and merely for accommodation, and such money is lost in the transmission to the east to the merchant, then is, or is not, the one so making such collection considered responsible to the other for such loss, unless he has been guilty of gross negligence ? \u201d\nWhich, on objection by plaintiffs, the court refused to permit the witness to answer, and defendant excepted.\nDefendant then read to the jury, without objection, the following letters, written to'him by plaintiffs, touching the matter in controversy ;\n\u201c Philadelphia, March 9, 1846.\nMr. A. W. Lyon, Batesville, Ark.:\nDear Sir \u2014 We take the liberty of enclosing to your address a note against Burr & Tucker, dated 16th October, 1844, at six months, for the sum of $907 93. We have written to them once or twice upon the subject of this account, but have not had an answer. We have always considered the house perfectly solvent, and will thank you to call upon them for payment, which they will no doubt make. Should you think that there is any doubt about their stability, and they refuse to make settlement, be good enough to hand over the note to a reputable lawyer for early collection. You can either leave the matter discretionary, or give the attorney instructions to take immediate proceedings, as you may judge best. The note, of course, bears interest six months after date. Trusting you will give this your early attention, and that we may have it in our power to reciprocate, we remain\nVery respectfully, JAMES TAMS & CO.\u201d\nPhiladelphia, April 24, 1846.\nMr. A. W. Lyon, Batesville, Ark.:\nDear Sir\u2014 Your favor of the 4th inst. is to hand, and contents examined. We are at a loss to know upon what grounds Mr. Burr claims an abatement of 10 per cent, for paying the money without suit. The profit of the entire bill would not average more than this per centage, and we cannot afford to sell goods for nothing and extend a credit of 18 months. To save the delay, &c., consequent upon a suit, we will take 5 per cent, off the gross amount, charging, as usual, interest after six months; or we will forgive the twelve months interest already due, and give up the note by their paying the amount of the face of it, say $907. We hope this proposition will induce Messrs. Burr & Tucker to make an early settlement with you. In fact, were we not much pressed for funds at present, we should not have made them such an offer; and, in no case, unless your recommending or deeming the claim doubtful, shall we submit to a deduction of 10 - per cent.If we knew the stability of Burr & Tucker, we could certainly judge as well as any other men whether or not it were wise to accede to their proposal; but, in the absence of any such information, are perfectly satisfied that you should judge for us in this instance, and, from the close of your letter, we should suppose the sooner the proposition was accepted the better. If you must hand over the note for collection, we, of course, add interest after six months until the time of payment, and we request that you will instruct the lawyer to take early and vigorous means to effect settlement. * * * * * *\nRespectfully, \u00abfee., JAMES TAMS \u00abfe CO.\u201d\nPhiladelphia, June 1, 1846.\nMr. A. W. Lyon, Batesville, Ark.:\nDeah Sir \u2014 We write to inform you that we have not yet heard from your friends, Walton & Sheafe, N.Q., in reference to our claim against Burr