{ "id": 1864456, "name": "Leake & Harvey, ads., v. Sutherland", "name_abbreviation": "Leake v. Sutherland", "decision_date": "1868-12", "docket_number": "", "first_page": "219", "last_page": "222", "citations": [ { "type": "official", "cite": "25 Ark. 219" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "6 Ark., 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727292 ], "opinion_index": 0, "case_paths": [ "/ark/6/0381-01" ] }, { "cite": "13 Ark., 276", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728052 ], "opinion_index": 0, "case_paths": [ "/ark/13/0276-01" ] } ], "analysis": { "cardinality": 414, "char_count": 7388, "ocr_confidence": 0.362, "pagerank": { "raw": 4.7613975036780343e-07, "percentile": 0.9302764369660161 }, "sha256": "2aa321000ff3fa1ef5208ecf5172011aec92dfbdb0fed340ef3780b946457256", "simhash": "1:a3bf6a83e22c24cf", "word_count": 1253 }, "last_updated": "2023-07-14T19:02:20.284265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Justice Wilshire, being disqualified, did not sit in the case. .", "Hon. William Story, special Chief Justice." ], "parties": [ "Leake & Harvey, ads., v. Sutherland." ], "opinions": [ { "text": "Gregg, J.\nThis suit is founded upon a claim brought by the appellee against the appellants, in the probate court of Ouachita county, upon an account of $1,575, alleged to be'due for money, by appellants\u2019 intestate, had and received.\nAppellee alleges that deceased was her agent from \u201961 to \u201965, and, as such, received the money for servant hire, house rent, and property sold.\nThe claim was duly verified by affidavit, but the record show\u2019s no presentment of the claim to the administrators for allowance ; but on the 10th of November, \u201966, the same was presented to the probate court. Both parties\u2019 appeared.and went to trial. Upon hearing the testimony, the court found for the appellee $975, that being the sum alleged to have been received' for the piano, the furniture sold, and part of the house rent and negro hire. The appellants excepted to the finding, tendered their bill of exceptions, containing -all the evidence, and appealed to the circuit court. Upon the presentation of the record and proceedings in that court, the judgment of the probate court was affirmed, and appellants appealed to this court, and here assign as error that the circuit court refused to try the cause de novo, and affirmed the judgment, when that court should have granted such new trial.\nUnder our practice it is legitimate, in the probate as well as justices\u2019 courts, for a defendant to appear, and, without any formal or written pleading, rely upon any and all meritorious grounds of defense. In this instance the defendants saw fit to avail themselves of this liberal practice; hence the court is not fully advised of the exact grounds occupied by them in the court below, but, as they acted in a fiduciary capacity, the strongest reason exists to presume they set up all lawful defenses.\nThe first ground here assumed by appellants\u2019 counsel is, that the record does not show that the claim was ever presented to the administrators for allowance before proceedings were commenced in the probate court. There is nothing in this objection. The defendants appeared and contested the claim, and thereby the Avant of presentation, like the Avant of notice, Avas by them waived. Madden, admr., v. The State Bank, 13 Ark., 276.\nThe evidence is all brought upon the record by bill of exceptions. It is insisted the finding of the probate court Avas not supported thereby.\nThe Avitness, Joseph J. Sutherland, testified that the deceased Avas the agent of the appellee in 1861-\u20192,-\u20198 and \u20194 ; that he, deceased, \u201c sold the piano, charged in said bill of items, and he received the money, Avhich Avas Confederate money,\u201d without stating Iioav much money. Possibly the court can be sustained in finding upon that proof the $400 charged in the bill of items, upon the ground that the Avitness spoke of the piano charged and the money, referring to the account.\nThe next item of $100, for furniture sold, the court found fully proved upon the Avitness\u2019 statement that the deceased, sold said furniture and received some money for it, but don\u2019t know Iioav much it sold for, or Avhat he received, but received all that it sold for.\u201d This proof, Avhich Avas the only testimony bearing upon this point, Avas certainly insufficient to support the finding of $100 alloAved by the court, and this alone was sufficient for the circuit court to have awarded a trial de novo. As to the other items found by the court in favor of the claimant, the testimony tended to sIioav that the deceased had received in Confederate currency the amounts so found.\nThe evidence shoAA'S the deceased to ha-vo been the agent of the appellee in 1861-\u20192-\u20193 and \u20194, but for what purpose, and to what extent that agency went, we are left to infer. If he was an agent, and performed acts, the legal presumption is, ho acted within the scope of his authority; and therefore, in this case, was, by his principal, authorized to hire, lease and sell the property for the pretended currency shown to have been received by him.\nAn agent can derive no benefit from profits properly belonging to his principal; ami, on the other hand, ho is entitled to be indemnified against all losses, innocently sustained by him on his principal\u2019s account. Story\u2019s Agency, secs. 339 and 340.\nIf the principal directed or authorized him to sell her property for such currency, no legal responsibility could attach to .him for so doing, and he was not, by the laws governing principal and agent, bound to account to her until a time fixed by the stipulations of his agency, or a demand made by the principal, neither of which events happened, so far as we can learn from the record, until the commencement of this suit, (that was, in effect, a demand). See Taylor v. Spears, 6 Ark., 381, and Warren v. Bridges, ib., 385.\nIf the deceased derived any personal benefit from appellee\u2019s property, by use, sale, or otherwise, he or his legal representatives are liable for the amount so received.\nIf the deceased, as agent, was authorized by the appellee to receive for her what purported to be Confederate States notes, an attempted currency, contrary to public policy put in circulation, though it may have had a purchasing force or conventional value in certain localities, she can not wait until such currency became utterly worthless every where and then hold her agent or his legal representatives bound for the nominal value of such notes.\nThe judgment of the Ouachita circuit court is reversed, and this cause remanded.\nChief Justice Wilshire, being disqualified, did not sit in the case. .\nHon. William Story, special Chief Justice.", "type": "majority", "author": "Gregg, J." } ], "attorneys": [ "' English & Wilshire, for appellants." ], "corrections": "", "head_matter": "Leake & Harvey, ads., v. Sutherland.\nProbate court \u2014 -pleading. Under our practice it is legitimate in the prohate as well as in the justices\u2019 courts, for a defendant to appear, and, without any written or formal pleading, rely upon any meritorious defense.\nWhere the defendant sued in the probate court for money received in a fiduciary capacity, omits to plead formally, and the transcript therefore fails to show the exact ground taken by him, there arises a strong presumption that he set up all lawful defenses.\nAdministration of estates \u2014 waiver of presentation of claims. Where an administrator, sued in the probate court, appears, and contests the claim, he waives the objection of want of prior presentation to him for allowance of the claim sued on.\nLaw of agency \u2014 agents\u2019 scope of authority \u2014 hispower to receive Confederate \u00edmoney \u2014 time to account \u2014 his right and liabilities.\nThe presumption is that the agent acts within the scope of his authority.\nWhere the evidence tends to show that an agent, appointed to hire, lease and sell property, receives Confederate money therefor, it is presumed, in the absence of proof on that point, that his principal authorized him to receive it.\nIf the principal authorizes the agent to receive Confederate money, no legal responsibility attaches to the agent for so doing.\nThe agent is not bound to account to the principal until the time fixed by the terms of the agency, or a demand by the principal. In such a case the commencement of the suit is a sufficient demand.\nIf the agent derives from the principal\u2019s property entrusted to him, any personal benefit, by use, sale or otherwise, he and his -legal representatives are liable for the amount so received.\nAppeal from Ouachita Circuit Court.\nHon. John T. He-arden, Circuit Judge.\n' English & Wilshire, for appellants." }, "file_name": "0219-01", "first_page_order": 243, "last_page_order": 246 }