
    The Commercial Bank of Manchester vs. Angus C. Chisholm et al.
    The Commercial Bank of Manchester lent to C. & M. $12,000, for which they were to ship cotton to the merchants of the bank to be shipped to Liverpool, and sold for account of C. & M., and the proceeds to be credited on the nóte of C. & M. for the sum lent; C. & M. shipped two hundred bales of cotton, which was sent-to Liverpool, and for which the bank credited C. & M.’s note with $6711 39, as the proceeds of sale. C. & M. not being satisfied with the credit thus given, it was held that they had a right to show, by way of increasing the amount of offset, the quality of the crop of cotton of that year, the usual weight of the-bales, and the average price at Liverpool about the time the sale took place.
    In such case the account of sales rendered by the English house (to which the cotton was shipped) to the bank, would not be evidence in itself; the deposition of some one acquainted with the transaction would be requisite to establish its truth, and thus make it admissible.
    Nor in such a case would the defendant be authorized to show that the notes of the bank, at and near the time of the maturity of the note, were at a discount in New Orleans, by way of increasing the amount of offset. If any such inquiry be instituted into the value of the money loaned, it must be confined to the time of the loan, and the place where it occurred.
    If the notes were at par value when received by C. & M., and the bank be by the contract liable for the difference of exchange, the measure of her liability would be the premium between par and exchange on Liverpool at the time of the sale of the cotton.
    If the notes were below par when paid out by the bank, then the amount of discount on them must be added to that premium, so as to make them equivalent to par funds at the time they were paid out.
    In error from the Tallahatchee circuit court; Hon. Benjamin F. Caruthers, judge.
    The Commercial Bank of Manchester, the plaintiff in error, brought an action in the circuit court of Yallabusha county, at the November term, 1840', against Angus C. Chisholm, James Minter, Caleh P. Alexander and George W. Saunders, the defendants in error, on their promissory note for the sum of $12,000, dated in January, 1839, and payable on the 18th of December, 1839 ; the plea of payment, with bills of particulars, was filed in these words, viz.:
    
      Commercial Bank of Manchester, Dr.
    
    To Chisholm <fc Minter:
    To 200 bales cotton, delivered April 1839, ■weighing 84,300 lbs. at 15 cts. . . . $12,645 00
    Freight and charges, $2, . . . $400
    Storage, labor and weighing, $0 50, . 100
    Insurance, 50 c......100
    Commissions, 2£ per cent. . . . 316 12 916 88
    11,728 88
    Difference of exchange between Manchester post notes and New Orleans funds, at 20 per ct. 2,345 77
    14,074 65
    Interest on above amount for eight months to maturity of note,...... 750 61
    14,825 26
    Amount of note subtracted, 12,000 00
    2,825 26
    Interest from 18th Dec. 1839, to May, 1842, 536 74
    Balance due Chisholm & Minter, $3,362 00
    The defendants also filed another bill of particulars of the same items, differing in the amounts of the value of the cotton and charges, which left the balance claimed by Chisholm & Minter, $7158 65.
    At the May term, 1843, a verdict was given for the defendants, and the jury certified a balance in their favor for the sum of $2827 17J, and the court rendered a judgment accordingly.
    By the bill of exceptions filed in the record, it appears that on the trial, the plaintiff offered in evidence to the jury the promissory note sued on, with this indorsement on it: “Received on this note $6711 39, it being proceeds of 200 bales of cotton sold in Liverpool, on account thereof. January 3d, 1S40.” The defendants read in evidence the deposition of S. H. Buckner, a member of the firm of Buckner, Stanton & Co., who proved that that firm acted as receiving and shipping agents of the plaintiff in .the winter of 1838 and spring of 1839. In April, 1839, said firm received two hundred bales of cotton, shipped to them for account of defendants, with instructions from them to reship to Liverpool for account of the plaintiffs. By instructions from the plaintiffs, the cotton was reshipped to Magniac, Smith & Co., Liverpool, for sale for account of defendants ; proceeds to be held subject to order, and for account of plaintiffs. The deposition of Francis Ganahal was read by the defendants. Deponent has pursued the commission business in the cotton trade in New Orleans ever since the year 1833. In the Liverpool market, on 3d January, 1840, cotton, Liverpool fair, was worth 7 pence. Tn July, 1839, cotton of that quality was worth from 7| to 8 pence ; and in August, 1839, was worth 7f pence. The sterling exchange on Louisiana for New Orleans funds was in August, 1839, at 11 to 11J premium; and in January, 1840, it was at 9| to 10 premium. That of his own knowledge he did not know the value of the notes and post notes of the plaintiff; but they were quoted by brokers, the notes on demand at three per cent, discount, and the post notes 22 per.cent, discount, in January, 1S40 ; and in August, 1839, the former at 7 per cent, and the latter at 20 per cent, discount. This deposition was objected to, but the objection overruled.
    Thomas J. N. Bridges, who was introduced as a witness by defendants, testified that the average weight of bales of cotton was about 450 pounds; that the crop of 1839 was generally good.
    William Minter, a witness on behalf of defendants, testified that in 1839 he lived three miles from Troy ; that the crop of that year was the best ever raised; that the neighbors generally shipped through Minter and Chisholm, at Troy. Metcalf testilled, that the average weight of bales of cotton was 450 pounds. McLaughlin testified, that the crop of 1839 was very good. Witness, Martin, stated that there were more good samples in a lot of cotton of the year 1839 than usual; that all crops grade down in their classification two or three qualities from the best sample; that the fine samples of that year were very fine. Granville R. Morris testified, that the 200 bales shipped by defendants, Minter & Chisholm, to Buckner, Stanton & Co., New Orleans, averaged in weight 416| pounds each, and that they would have classed good fair. He stated, on cross-examination, that it was his impression the defendants, Minter & Chisholm had returns for said 200 bales from Liverpool; he thought he had seen them. On re-examination, he stated that he could not say the returns he saw them have were from Liverpool; they came to them through Mr. Hughes, cashier of the Commercial Bank of Manchester (the plaintiff.) The defendants then read to the jury a letter addressed to Chisholm & Minter, from the Commercial Bank at Manchester, on the 11 th of March, 1839, signed by J. J. Hughes, cashier, whose signature was admitted by plaintiff’s counsel, stating that he had received a bill of lading for 35 bales of cotton, consigned to Buckner, Stanton & Co., New Orleans, the proceeds of which were directed to be held subject to the order of the bank for defendants’account. Also another letter dated on the 23d of March, 1839, in which he states that he had received bills of lading for 211 bales of cotton, shipped by defendants to Buckner, Stanton & Co., New Orleans, to be sold by the bank for defendants’ account.
    The plaintiff objected to all of the foregoing testimony, except the deposition of Buckner.
    The bank, by way of rebutting proof, offered to read to the jury the account of sales of the cotton at Liverpool, forwarded by the merchants at that place, to whom the cotton had been sent for sale, and by whom it had been sold. The defendants objected to their being read, and the court sustained the objection, and plaintiffs excepted.
    After the jury had rendered their verdict, the plaintiffs moved for a new trial, which being refused, they prosecuted this writ of error.
    
      
      A. C. Baine, for plaintiff'in error.
    1. The first error apparent on this record is the admission of the letters of Hughes. One of these letters was introduced to prove that 211 bales had been received by the bank, when in no one of .the three bills of particulars is a charge made for but 200; a party cannot be allowed to go beyond his bill of particulars with his proof. See statute.
    
      2. All the testimony of Ganahal, and all others subsequent to Buckner’s was erroneously admitted ; because Buckner’s deposition proves that the cotton was :to be, and was in fact shipped by the plaintiff for and on account of the defendants. This being so, no testimony was proper but such as proved the bank had acted in bad faith in the sale of the cotton; or proof that the bank in Liverpool actually received more than it credited the note for.
    3. The court erroneously ruled out the account of sales the plaintiff proposed to introduce, for the reason that the defendants had the means in their own hands to prove them false if not correct;.because Morris, their own witness, proves they (defendants) had the account of sales rendered to them.
    
      William G. Thompson, for defendants in error.
    It is contended by the counsel for the plaintiff in error in the first place, that the letters of Hughes were improperly admitted in evidence before the jury. These letters were written by the cashier of the bank (the plaintiff below,) admitting that bills of lading had been received for as many bales of cotton as the defendants below claimed a credit for. And the admission that eleven, or any number of other bales were received, surely does-not render those letters irrelevant to the matter in controversy. Other advances may have been made by the bank, and there is allusion to that in one of the letters, for which an appropriation was to be made of the additional bales.
    It is contended, secondly, that no testimony subsequently to Buckner’s deposition could have been properly admitted, except such as proved the bank acted in bad faith in the sale of the cotton. There was no contract that the note should be credited-with a definite sum, by the proceeds of the 200 bales of cotton. Buckner proves that the bank assumed the control of the cotton in his hands; this was certainly allowed by the defendants, with the understanding that due efforts should be made to obtain the best price for it. The bank offered no testimony of any description to show what the cotton sold for; the defendants have clearly proven, that it might have been sold for a greatly larger sum than the note is credited with.
    It is contended, thirdly, that the court below erred in ruling out the account of sales offered by the plaintiff. It was in proof that the cotton in controversy had been shipped to a house in Liverpool. The account of sales offered by the plaintiff was from a house in London ; and it does not appear that it had any relation to the cotton shipped by the defendants. So it was properly ruled out. The witness Morris did not state that the defendants had an account of the sales of this cotton. It was merely his impression that he had seen it. These are all the objections raised by the plaintiffs to the judgment in this case.
   Mr. Justice Clayton

delivered the opinion of the court.

In January, 1839, the plaintiff in error lent to Chisholm & Minter $12,000, payable eleven months thereafter, which seems to have been an advance to them, for which they were to ship cotton to the commission merchants of the bank at New Orleans, to be thence reshipped to Liverpool, and sold for account of Chisholm & Minter, and the proceeds to be held subject to the order of the bank. In April, 1839, two hundred bales of cotton were received by Buckner, Stanton & Co., at New Orleans, shipped to Maginac, Smith & Co., at Liverpool, and for which the bank afterwards rendered a credit of $6711 39. Chisholm & Minter were not satisfied with the amount of this credit, and they introduced testimony to show, that cotton bore a higher price in Liverpool about the time when the sale was made, than was allowed them. The jury found a verdict for the defendants, and gave a certificate for nearly $3000 in their favor. After refusal to grant a new trial, the case was brought to this court.

Much of the testimony introduced by the defendants was objected to by the plaintiff, but was permitted to go to the jury. That which relates to the quality of the crop of cotton shipped in 1839, the usual weight of bales, and the average price at Liverpool about the time the sale took place, is in our view free from objection.

As rebutting proof the plaintiff offered in evidence, the account of sales rendered by the English house to which the cotton was shipped. This was rejected by the court, and a bill of exceptions taken to its exclusion. There is no principle which would make the account of sales in itself evidence; the deposition of some one acquainted with the transaction would be requisite to make it admissible.

The testimony introduced by the defendants, in regard to the value of the notes of the Manchester Bank at New Orleans, in August and October, 1839, and January, 1840, was wrongly admitted. There was no proof as to the kind of money loaned to them, though it is fair to presume it was the notes of the bank; neither is there any proof as to their being post notes, or payable on demand. The evidence too relates to a period long after the transaction with the defendants, and to a place distant from the bank. If inquiry is to be instituted into the value of the money loaned, it must be confined to the time of the loan, and the place where it occurred. If the notes were of par value when received, all that the plaintiff can be chargeable with for foreign exchange is the premium between par paper and exchange on Liverpool at the time of the sale of the cotton. If below par when paid out by the bank, then the amount of discount upon them must be added to that premium, so as to make them equivalent to par funds at the time they were paid out by the bank.

Judgment reversed, and new trial awarded.  