
    D. W. Carmichael vs. H. Buck.
    
      Principal and Agent — Bailee—Purchaser.
    Where the owner of a raft of timber puts it in possession of a bailee, with instructions to float it down the Pee Dee River and deliver it at Georgtown to a factor for sale, one who purchases it from the bailee representing himself to be the owner, acquires no title.
    BEFORE MUNRO, J., AT HORRY, SPRING TERM, 1858.
    Tbe report of his Honor, tbe presiding Judge, is as follows :
    “ In my Inst notions to tbe jury in this ease, I endeavored to conform as nearly as possible to tbe principles announced in tbe opinion of tbe Appeal Court, ordering a new trial. See 10 Bich. 332. As tbe errors imputed to my charge to tbe jury are rather for omission than of commission, all that seems necessary to a proper understanding of tbe points raised by tbe plaintiff’s grounds of appeal, is tbe testimony taken upon tbe trial, which is herewith annexed.
    “ Evidence for plaintiff. — Christopher Huggins. — Witness resides in Marion District; accompanied plaintiff to Bucksville to look for raft of timber; saw tbe raft near tbe mill; other timber there. Jas. E. Dusenberry was present; recognized the raft, as witness helped to raft it, and bis name was upon one of tbe sticks; twenty-six sticks in raft ; a few other sticks were fastened to the raft; these were old timber ; tbe timber was demanded of Mr. D., who refused to give it up; Buck also refused; Bobert Huggins was hired- to carry raft; Carmichael hired him to carry it to Shackleford, in Georgetown, and was to give him twenty dollars, and find him for doing so ; Huggins was to bring back a receipt from S. for tbe timber; Huggins was in tbe babit of carrying down timber; all tbis occurred in May, 1854.
    
      “Cross-examined. — Wrote bis name on stick of timber; wrote it 0. Huggins; Oarmicbael was to give Huggins twenty dollars and find bim in provisions ; Huggins’ brother went witb bim ; Huggins repeatedly carried timber on tbe river ; Dusenberry went to raft witb Oarmicbael; tbe latter demanded bis timber; D. refused, as be bad paid for it; D told 0. to go upon H. for tbe timber ; 0. said be had demanded it from H.; 0. said be bad found bis timber, and that was all be cared for ; do not remember if be said be would not go on Huggins : do not recollect if 0. said be bad not seen H.; 0. said be bad found bis timber ; Huggins is, as far as I know, of good character; have beard nothing of tbis sort before about bim; Huggins lived at tbat time about five miles from plaintiff; plaintiff cut a part of tbe timber ; also Eobert H. and James H. Huggins; J. H. is not tbe brother of E. H.
    
      “ Reply — J. H. & E. H. Huggins assisted in cutting the timber, but were paid by Oarmicbael for their services.
    
      “ Samuel W. Edwards. — Witness lives in Marion District ; knows Eobert Huggins ; plaintiff called upon H. and asked bim if be had receipt from Shackleford for timber ; H. said be bad sold his timber to Oapt. Buck ; said be bad got about one hundred and forty dollars; said'be bad got tbe money and lost it; did not see H. pay 0. any money. Huggins bad been in tbe babit of carrying rafts ; floated all of Puller’s rafts down for bim; Oarmicbael and Huggins bad their conversation before 0. came to demand bis raft. The raft was a good one; I offered one hundred and seventy-five dollars for it on tbe river, when it stood before rafted.
    
      “ Cross-examined. — I offered 0. one hundred and seventy-five dollars before it was rafted, on tbe land. Not certain how many sticks there were. I heard the conversation between C. and H. before I came to Conwayboro ; H. said he had lost the money. ' m
    
    
      “ Reply. — I offered to float the raft for 0. to Capt. Buck. C. said he wanted it to go to Georgetown.
    
      “ Archibald Carmichael. — ■ About the 1st of June, 1854, I was about to carry rafts to Georgetown. 0. told me he had one he wished me to take to Georgetown. He came on Saturday to see if I was ready. Was not ready until Monday, at which time 0. gave me an order to draw the money for raft from Shackleford. The highest price I got was twelve and a half cents per foot for forty foot timber. Never saw C’s raft. Called on Shackleford for his money.
    “ Christopher Huggins, recalled — Sticks attached to rafts were average sticks.
    
      “ Oross-examinecl — Do not know their exact size. The sticks attached to raft were different sticks from the twenty-six started with.
    Evidence for Defence.
    “AVilliam Bullard. — Has been engaged for twenty-five or thirty years in rafting and selling timber. Lives three miles from Drowning Creek. Have done a great deal of business in timber for myself and others. The custom in buying and selling timber has always been, that the man cutting the timber sold it and received the money. Have sold in Georgetown, at ■ Capt. Buck’s mill, and received money or notes for myself and others. This custom is universal, as far as I know, except when negroes were the carriers. I remember overtaking Huggins at lake, about 1st of June, 1854, with two lengths of timber — sold the timber to Dusenberry. I was with Huggins before the sale was made. Said he and his brother ont the timber. Next morning I heard him sell the timber to Dusenberry as his property. Do not know what he got for it. He got as much as I did according to measurement. D. gave all of us orders for our timber on Buck. D. gave H. about one hundred and fifty dollars for his timber, and H. said he was satisfied, and had got more than he expected. I received money for the raft which I was on, which did not belong to me. Some sticks along with raft looked as if they did not belong to raft. I did not see H. and D. together until they came on raft. Hugh Floyd’s son was with me on raft. Huggins said he had no provisions, and I asked them to eat with me. Custom is to furnish provisions to hands who carry rafts. They said they were out of provisions when I met them and I fed them.
    
      “Cross-examined. — Not Capt. Buck’s agent. Have bought timber for Buck two years ago. He paid me for doing so. Have no subpoena to attend Court. Expect no one to pay my board. Captain B. paid me something when I was here before. Cannot recollect amount. Have been floating timber for years. I say it is a general custom for carriers to sell raft. I have paid hands to carry and sell timber for me.. Know many men who carry timber. Josiah Barns, have been with him often; going down for others and selling for others. In the habit of selling for others. Suppose he would be trusted by the mills in Georgetown. Do not suppose a stranger on raft would, be treated until for raft under the circumstances of this case. I have not said that Dusenberry suspected that H. did not own the raft and only bought it under my repsesentations. I asked S. who .got the timber, and who was the owner because of the appearance of the raft and two sticks attached. I met them after they had fixed their raft, and were trying to find their way to Bucksville. The sorry appearance of the timber caused me to inquire as to who got the raft, as well as the three sticks attached. Other rafts were lying in neighborhood. H. was on his raft. Forgotten what I got for my timber. I have got twelve and a half cents per foot for timber. I got eight or nine cents for my timber on that occasion. If paid in cash, eight or nine cents were to be preferred to twelve and a half on time. I have no promise of money for coming here. I know Elisha Harrell. Have had no conversation with him about this timber as I recollect. I did not tell him that D. suspected the ownership of timber, and that my representations caused D. to buy.
    “ Reply. — There is a difference in measurement at Buck’s and in Georgetown. The difference at Buck’s was in favor of the seller. I did not suspect the ownership of raft brought by H. All staid on raft during the night. I asked him who got the timber because it looked sorry. H. said he was obliged to have money for his raft. Heard no conversation between H. and D. as to money. I measured my raft myself.
    “ Gross-examined — Huggins said he had got a law suit, and must have the money.
    
      “ Thomas W. Beaty. — Has been in the habit of buying timber since 1852. Have bought timber for Buck on Little Pee Dee. The custom in that place is to pay, in one-third, of the cases, the carriers of rafts; sometimes to pay the owners at other times. When a party says the property is his, I always purchase, even 'if he is carrier. Yery seldom see more than two men on one raft. Lived ten or twelve miles from Little Pee Dee.
    
      “ Gross examined. — Sometimes, on representation of carriers that the raft does not belong to them, I wait for demand by true owner. So far as I transacted Buck’s business this was generally the case. Sometimes he paid both carrier and owner, as in case of [Robert Powell. Do not recollect having . purchased from any Griffins for Capt. B. Do not recollect any contention between Puller, of Marion, and Capt. B. Do not recollect a casé compromised by Buck with Mr. Boylston.
    
      “ Reply. — Buck paid, in case of Powell by verdict of jury.
    
      “ Samuel Pope. — Has been engaged in the timber business about fifteen years ago. Bought a good deal of timber. It was generally the custom to purchase from carrier of raft. When carriers said owners would come for money, we did not pay carriers. Two men generally carried a raft on Pee Dee, and did not hesitate to buy from them when they said the raft was theirs. Dusenberry staid at the mill near Bull Creek.
    “ Z. W. Dusenberry. — Has purchased timber at Waccamaw and Bull Creek from 1840 to 1854-5. The custom was generally to pay the hands that brought the timber-. Sometimes old customers would send several rafts before they were settled for. Never knew an instance of not buying from persons representing themselves as owners of rafts.
    
      “ Gross-examined — Knew Buds to pay twice for rafts ; one compromise until Boylston. Buck had nothing to do with the Griffin settlement. Buck has had a great deal of trouble with the timber getters.
    
    
      “ Gross-examined. — Think Boylston sued Buck for Griffin; is not certain, however. Do not know that Buck paid any money in any case except Robt. M. Powell’s.
    “ Thomas H. Holmes. — Knows custom as regards sale and purchase of timber for about twenty-five years. The custom was generally to buy from the carriers of raft. Knows of no departure from this custom.
    Testimony in Reply.
    
      “Q. Huggins. — Robert Huggins said he had as much provision as he wanted. He had been often to Georgetown.”
    
      • The plaintiff appealed, and now moved this Court for a new trial on the ground: . . .
    1. Because the testimony having established that Eobert Huggins was a special agent, to carry, the raft of timber sued for to Georgetown, to be sold by'plaintiff’s' factor there, his Honor should have charged the jury; that neither “custom, nor the usuage of trade,” could bar his right to recover from the defendant.
    2. Because the evidence failed to establish “ the custom or usage of trade,” contended for on behalf of the defence.
    3. Because it having been clearly proved, that the plaintiff sent his timber to Georgetown, to be sold there, at which place defendant’s witness, William -Bullard, said -he did not believe it would haye been bought under the circumstances, his Honor should have charged the jury, that “custom and the usage of trade” at Conwayboro and Bucksville had no application to this case.
    , 4. Because his Honor should have charged, that the agent of. plaintiff being a stranger to the defendant, and having-different and'suspicious sticks of timber attached to his raft, in such a manner as to excite inquiry from William Bullard, a witness for the defence, were circumstances to be especially taken into'consideration bythe jury in arriving at a verdict ; to neither of which facts was there any allusion in his Honor’s charge.
    
      Munro, for'appellant.
    Principal is not bound when special agent exceeds his instructions. Story on Agency, sec. 17 ; 1 Espinasse, 111; Parsons vs. Webb, 8 Greenl., 38 ; Paley on Agency, 166; Poioell vs. Buoh, 4 Strob. 427: Tunno 
      
      & Cox vs. Sukely, 2 Bay, 505 ; Lance vs. Barrett, 1 Hill, 204 ; Story on Agency, sec. 126, 443.
    The usage of trade relied upon, by the defence was neither continuous, reasonable nor acquiesced in. Singleton vs. Hillard & Brooks, 1 Strob. 203 ; Patton vs. Magraih & Brooks, Dudley 159 ; BarJcsdale vs. Brovm & Tunis, 1 N. & McC. 517; Heyward vs. Middleton, 3 McO. 121; Noy’s Maxims, 48, Customs ; Thomas vs. Graves & Toomer, 1 Const. R. 308.
    
      Harlee, contra, cited
    
      Carmichael vs. Buck, 10 Rich, 332 ; 1 Story Com., sec. 384, 389 ; 15 Eng. C. L. R., 38, 43 ; 2 Kent, 624.
   The opinion of the Court was delivered by

Johnston, J.

The plaintiff, Carmichael, placed a raft of timber in the custody of one Huggins, whom he hired to float it down the Pee Dee to Georgetown, and deliver it to Mr. Shackleford, his factor, for sale, and bring back the factor’s receipt. Huggins started, in company with his brother, with the raft; but deviated from his route, carried it to Bull creek, and sold it as his own, to Buck, the defendant, and failed to pay over the proceeds to his employer. Carmichael pursued his property, and finding it in Buck’s possession, demanded it of him; and being refused, brought this action.

He has proved his property; has established the want of authority in Huggins to sell it; has shown the conversion of it by the defendant, to his own use; and demands a legal remedy for the wrong done him.

To this the defendant replies that he bought it of Huggins, who had the custody, and who represented it to belong to him; and that he paid him for it in ignorance of the plaintiff’s right.

The jury has rendered a verdict for defendant; and this is an appeal of the plaintiff for a new trial.

Now, I think no man is to be deprived of his property simply because a third party has imposed it upon a purchaser as his own, when it was not; unless the real owner has, in some reasonable degree, contributed to the imposition. The purchaser, claiming to hold it against the owner must, on general principles, have got his title, or he has got nothing: and that title could pass only by the owner’s personal transfer, or by the transfer of his agent, authorized to 'make it, either by express authority, or by authority which the law, on sound principles of policy, will imply.

It is vain for the purchaser to rely merely on his own ignorance or innocence. Every one feels for a man who has been deceived. But the being deceived is not enough to entitle him to another man’s property. Should a thief, for example, have stolen goods, and sold them; though he has deceived the purchaser, this constitutes no just reason for relieving the latter at the expense of the party robbed.' Unless he has, to some reasonable extent, made himself privy to the injury of the vendee, is he not entitled to equal protection on the score of innocence, and to additional protection as the real owner of the property ?

' It is familiar law, that where one buys, as Buck did in this case from Huggins, from one who claims to be the owner; his interest must be presumed to depend on the title, and warranty of his vendor; and if that title is null, his resort should be to him for redress.

This is the fundamental principle in such cases. But, though no agency was disclosed to him, or even suspected by him, yet if he discovers and can show, that thé person from whom he bought, was, in fact, the agent of another, the law so far indulges him as to allow him to resort to that other, according to the degree of his privity to the transaction, and of the authority he may have imparted to his vendor. If in this way he can derive a general authority from the owner to the vendor, or a particular authority, sufficient to warrant the sale by him, as a,gent of the owner, he has made out a good case against the owner, both as to title, and as to any other remedy which the case may in law require.

• And he may go still further. If he show that the owner held out the vendor as real owner, when he was not; or committed to him a general authority, of a public eommercial character, such as that of a factor, which in se implies agency, and'whose function is essentially only to buy and sell, while by secret or private instructions, he affected to'limit'him in the exercise of it; in either case, the-owner’s right of reclamation will be destroyed. - He is bound by the sale! Or if he stands by and permits one in possession of his property to represent and sell it as his owd, without contradiction, he is 'equally bound by his fraud, as if he had made the transfer himself.1 ...

'- These principles are clear ; but it is equally clear that if the owner has imparted no general authority, nor any special authority justifying a sale of his property, and has not countenanced the sale, nor- by his conduct misled the purchaser; he is not bound, and he is entitled to have his property back.

Dependence is placed, in this case, on certain facts supposed to have been established by the jury, to turn aside the general’ principles. ■■

It is the province- of a jury'to ‘draw inferences--frem. the-evidence in a case before them. - But their inferences should be reasonably warranted by the evidence. It would be a mere sporting with justice to uphold-:a verdict resting in caprice; or a verdict founded entirely on-trifling'or imrna-' terial facts. Where there is-.in a case’ a well balanced conflict. of evidence, and the jury allows one scale to go down under the influence of trivial circumstances, their finding should not’be'disturbed; since even trifles may cause 'a-preponder-' anee ;’-but where the verdict affects injuriously general and-salutary principles of law, and of reason, and is made without .evidence, or. on a clearly mistaken view of the evidence, it should he set aside. .

In this case, it is attempted to uphold the-verdict, by evidence that the plaintiff may have contributed to the deception of the defendant, in. two particulars.

. 1. That he placed the raft in the hands of two white-men, and thus, enabled them to hold themselves out as owners of the property.' . , •

, 2. That a custom is shown to exist, that purchases are made from raftsmen, declaring themselves.'to. be owners; and the plaintiff’s placing the raft in-this case in.Huggins’ custody,, enabled him to impose it on Buck as his own.' •

In the evidence there is no proof,.whatever that .Carmichael did.more than place his timber .• in. the.-hands.of a bailee for a limited and, special purpose : a case- of special agency. . If, from the mere fact of placing property'in'the hands of. a .bailee, whose proper "function: is, to carry and not, to sell, without more, a jury is at liberty to infer a power to go beyond the special authority, and-, infer a general power to sell; it is palpable that the rights of property may as well be given up,,and the distinction between general and special -agencies, abrogated. The law is not so. The jury must have some act, some declaration, some conduct, on the part of the owner, fitted to 'deceive an innocent public. If the mere custody of property is such evidence of ownership as to mislead, then what can a bailor do? Must he lose his property unless he go along, and make continual proclamation of his .rights, or of the limited contract he has made ? There is no other solution o.f the difficulty, it seems to me, but to declare that where one for a special purpose, commits his property to a limited agent, in the. usual way of doing such things, he is not to be accused of holding out the agent as more than he is, or giving him the indicia of ownership.

“ When,” says Story, “ the agency, is not held out by the principal by any acts, or declarations, or implications, to be general, in regard to the particular act or business, it must, from necessity, be construed according to its real nature and extent; and the other party must act at his own peril, and is bound to inquire into the nature and extent of the authority conferred. In such a case there is no ground to contend that the principal ought to be bound by the acts of the agent, beyond what he has apparently authorized; because he has not misled the confidence of the other party, who has dealt with the agent. Each party is equally innocent; and in a just sense, it cannot be said that the principal has enabled the agent to practice any deception upon the other party. The duty of inquiring, then, is incumbent on such party ; since the principal has never held the agent out, as having any general authority whatsoever, in the premises, and if he trusts, without inquiry, he trusts to the good faith of the agent, and not to that of the principal.”

Now, what indicia of ownership did Carmichael impart to Huggins? None, whatever, according to the proof, except giving him possession: and if the possession of a bailee of this description is sufficient index of ownership to be construed into a misleading of the public, it will no longer be safe for a planter to send his cotton to market by a wagon or a boat.

And as to the custom relied on, it is pernicious, unreasonable, and not to be allowed that the mere pretension to ownership by the custodian of property, is sufficient to oust the owner. Observe in this pretended custom, not shown to be universal, but the contrary, there is no allusion whatever to agency, or to the degree of agency involved. The evidence is simply that it was considered safe to buy from raftsmen claiming to be owners. This, as a legal opinion, and it is nothing more, is incorrect.

The doctrines contended for are more assimilated to equity than to law. Eew things are more dangerous in a law Court, tban attempts to administer the principles of a j urisdiction so foreign to its own. That it is competent, and even commendable for law forums to amplify the remedies within their jurisdiction by enlarging the scope of their administrative functions in matters of practice, is cheerfully admitted. But the doctrines and principles administered should be law and not equity doctrines. Any thing else tends to confusion and conflict. But even .in Equity Courts, the 4egal title must be acquired, or the purchaser gets nothing; and it is only when to the legal title, he adds freedom from all notice of trusts attaching to the property, that he entitles himself to hold it against the former owner.

It is the opinion of this Court, that a new trial should be granted, and it is ordered accordingly.

Motion for new trial granted.

O’Neall, O. J., and Wardlaw, J., concurred.

Motion granted. 
      
       Story on Agency, sec. 133.
     