
    
      R. L. Williams vs. James N. Cochran and Wife.
    
    An agency created by writing, held, not to preclude evidence by parol to show a further special agency to do a particular act.
    "Where anew trial is moved for on the ground that the evidence was too slight to warrant the vordict, it is hard to lay down any useful or practical rule as a guide to the discretion of the Court.
    In an action against husband and wife upon a contract alleged to have been made by the wife dum sola, though the acts and declarations of the husband cannot be given in evidence to show a ratification or confirmation of a contract which the wife had never, in fact, made, or to throw a liability upon her which she had never assumed, yet such evidence is competent for the purpose of showing that the contract alleged had been, in fact, made by the wife, and was valid and subsisting at the time of the marriage.
    
      Before Withers, J., at Abbeville, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    “The plaintiff sought to recover against the defendants the principal and interest of the following note :
    “ ‘One day after date I promise to pay R. L. Williams, or bearer, the sum of seven hundred and forty dollars, for value received of him, this 29th of November, 1850.
    (Signed) T. P. Mosely, Agent for C. A. Whited
    “Subsequently to the date of this note, Mrs. White, who was a widow, intermarried with the defendant, Cochran. The evidence derived from T. P. Mosely was to the effect, That before the death of White he had been his agent to traffic in the purchase and sale of negroes, and had executed several notes, in the course of his trading, in the name of White. That after his death he continued the business for the widow, now impleaded with Cochran, in pretty much the same relation; that the note was given for a negro girl, Sophy, who had belonged to White, and for a horse, estimated at forty dollars; that shortly before he bought Sophy and gave the note in question for her, he had told Mrs. White that he could buy her; that she consented he might do so if he could, so as to make anything on it; that before that there was a written contract between him and Mrs. White ; that he told the plaintiff he was her agent to buy the negro, and give her note; that when he wanted the money he had only to present the note and it would be paid; that two days before the date of the note, he had executed the following instrument:
    
      “ ‘ South-CaroliNa, l Know all men by these presents, that Abbeville District. } I, Celestia A. White, of the State and District aforesaid, have furnished Tarleton P. Mosely, of the State and District aforesaid, with six thousand three hundred and thirteen 62-100 dollars, on this day, who has been and is to be engaged in the trade and traffic of buying and selling ne-groes for me, and act as my agent in the use of the aforesaid six thousand three hundred and thirteen 62-100 dollars for my entire use and benefit; and the said Tarleton P. Mosely is to return to me the above-mentioned six thousand three hundred and thirteen 62-100 dollars, with all the neat profits that may or has been derived or realized, on the said six thousand three hundred and thirteen 62-100 dollars in the trade and traffic aforesaid, at any time that I may call on him for the same, this 27th November, 1850, as witness my hand and seal.
    (Signed) T. P. Mosely, [l. s.]
    Test — Thomas M. Wilson.’
    “ Mosely said that on the same day his wife signed a note, for which he received the money from Mrs. White, as follows:
    
      “ ‘ One day after date I promise to pay C. A. White, or bearer thirty-seven hundred dollars, money borrowed of Joel Smith and A. Giles, notes’ dates not recollected, which I am to pay interest on — this not to bear interest — from the date of the above-mentioned notes. This 27th November, 1850.
    (Signed) Frances E. Mosely.’
    “This last sum, said Mosely, was placed in his hands for the benefit of his wife. The profits of his agency, mainly, if not wholly, were to enure to the benefit of his wife, who was a sister of Mrs. Cochran, he, Mosely, being quite insolvent.
    “ It was further disclosed by the evidence, that Mosely proceeded to Mississippi with a parcel of negroes (Sophy included,
    
      and the horse bought from plaintiff;) and meantime Mrs. White married Cochran. The latter went to the plaintiff’s house and made some inquiries about Mosely of the plaintiff’s brother, who had been with Mosely and had returned ; obtained from the plaintiff the note now sued on, leaving a copy thereof and a receipt, stating that he had received it for collection. Plaintiff’s brother testified that Cochran said, if he found the negro and the horse in Mosely’s possession, he would pay the note ; if not, it should be returned — that Cochran afterwards told him he did get the negro and the horse. Soon after this Cochran went in pursuit of Mosely, having expressed apprehensions that Mosely was about to behave badly. He went to Mississippi, encountered Mosely, entered into the transactions with him disclosed by the papers hereto appended, marked 'D’ and ‘F.’
    
    
      “After the execution of these papers Mosely and Cochran came to Eutaw, Alabama, where some misunderstanding arose, and Mosely, with some $1600 of Cochran’s money, started for South-Carolina ; was forthwith pursued by Cochran to Tuscaloosa, and after a good deal of wrangling for a day and night, Mosely said that from time to time he returned the money belonging to the other, and then came to this State.
    
      “ Before Cochran reached Mississippi, Mosely entered into a transaction with one Herndon, a trader in negroes, disclosed by the paper ‘H,’ annexed.
    “ Mosely admitted that a bad state of feeling existed between himself and Cochran. But he testified that a full settlement was had between them in Mississippi, and the note, now the cause of action, was taken into the account, and Sophy and the horse, which were the consideration of it, were delivered there to Cochran, together with everything else he had.
    “ The paper marked ‘B,’ was introduced by the defendant to show the nature of Mosely’s agency for Leonard J. White, the deceased husband of Mrs. Cochran.
    “ It appeared that Mr. Joel Smith had lent to Mrs. White, on her note executed in person, October 2, 1850, $2,500, for which loan Mosely had previously applied. On that occasion he said nothing about agency, though the parties met in the road, and had not a long interview; that Mr. Smith sold to Mrs. White three negroes for $2,400, on 26th November, 1850, and took her note signed in person ; that Mosely negotiated this transaction, and said Mrs. White would give her note. The negroes, however, were delivered to her; that he understood them to say the money borrowed from him was to buy negroes ; that Mosely and Mrs. White went to Virginia to purchase negroes ; that he would not have taken Mrs. White’s note signed by Mosely as agent.
    
      “ It appeared further, that a Mrs. Wilson was a sister of Mrs. Mosely, and when Mosely was sued on the note in question now, he was a resident at Wilson’s, and on the occasion of some interview between the plaintiff (I believe) and Mosely, he referred to Mrs. Wilson as competent to prove his agency and to sign the note for Mrs. White — Mrs. Wilson denied she knew any such thing.
    
      “ The only other instances proved on the trial, in which Mosely had signed the name of Mrs. White, as his principal, was one bill of sale of a negro, which it did not appear she ever knew anything about, and another which she did sanction. The date of neither appeared.
    “ Mr. Noble, defendant’s attorney, said, that at October Term last, plaintiff came into his office and without interrogation volunteered to say, that he charged Noble with preventing a compromise of this case, and said that Mosely offered him the money for the negro and horse, but he preferred a note for the sake of the interest.
    
      “ The foregoing, with the documents referred to, comprise, I think, the substance of the whole testimony presented, on either side.
    “ The jury were fully instructed upon the law of agency— touching every point in that branch of law involved by the evidence or the argument. There seems to be no complaint by the appealing party to such exposition of the law of the case, and, therefore, I forbear to set forth the charge. I expressed no opinion upon the facts; yet, I told the jury, explicitly, that argument for the plaintiff, derived from Cochran’s supposed ratification of the purchase of Sophy by receiving her and the horse from Mosely, in Mississippi, could not be a good cause of action against him and his wife, since, if the liability of the wife did not exist when the note was made, the act of the husband would not operate to fix any upon her — that such portion of the evidence could only bear, as one fact in the case, and be taken for what it was worth, upon the inquiry whether the authority was originally communicated by Mrs. White to Mosely. As to the paper signed and sealed by Mosely on the 27th November, 1850, (heretofore set forth,) the jury were told to consider whether that indicated the full scope and specific limits of his agency, or whether there was a special authority beyond it, to execute this note. If the former were true, then it was necessary for the plaintiff to show that the execution of such a note was necessarily incident to such agency as the paper indicated, as a means to the prescribed end — or, failing in that, (as was manifest he would,) he must show that he had a right, as a third person unaffected by a private relation between Mrs. White and Mosely, to regard Mosely authorized to sign the note, as agent, by reason of similar acts recognized and ratified by Mrs. White ; and, as to the last proposition, there was no evidence except the bill of sale, which Mrs. White had sanctioned.
    
      “ With such instructions on these points, and sundry illustrations of my meaning, the cause was submitted to the jury on the entire evidence, and they found a verdict for plaintiff, for $700 and interest, excluding (as I told them they ought) the price of the horse, which Mosely did not pretend to have authority to buy.”
    The defendants appealed, and now moved this Court for a new trial, upon the grounds,:
    1. Because no authority was given Tarleton P. Mosely, the agent, to use or pledge the credit of his principal, Mrs. Celestia A. White, now Mrs. Celestia A. Cochran, one of the defendants, as he, the said agent, was furnished by his principal with ample ready money or capital upon which to trade; the saidt agency having been created for the sole benefit and advantage of Mrs. Frances E. Mosely, the wife of the said agent, and not for the benefit of the said principal.
    2. Because the said agent, Mosely, was not only furnished with ample capital, but by his receipt, under seal, bearing date the day he set out upon his aforesaid agency, to wit: the 27th of November, 1850, in his own handwriting, and containing the terms of the contract between him and his said principal, he not only defines and expresses the scope of his authority as agent, but thereby precludes and estoppes himself from proving a previous parol authority from his principal to pledge her credit; thus attempting by parol testimony to add to and enlarge his power as agent in contradiction to his aforesaid receipt, under seal, which states the terms of the agency.
    3. Because it was in proof that the said agent, Mosely, had in his pocket at :lhe tipie he pledged the credit of hjs aforesaid principal, by signing her name to the note which is the foundation of this action, a large amount of money, to wit: at least three thousand seven hundred dollars, advanced him by his said principal for the purposes and objects of the agency ; thus showing conclusively he was not authorized to use or pledge the credit of his aforesaid principal.
    4. Because the act of the aforesaid agent, Mosely, was beyond the scope of his authority, which has not been recognized and confirmed by the defendants, Cochran and wife.
    5. Because the verdict of the jury was contrary to the law and evidence of the case.
    Noble, for appellants.
    Marshall, Me Gowen, contra.
    
      
      
         The paper marked “D” is as follows;
      THE STATE OF MISSISSIPPI — CABPOL COUNTY.
      This agreement, made this tho 13th of March, 1851, between T. P. Mosely of the first part, and J. N. Cochran of the second part, witnesseth: That whereas said T. P. Mosely has been engaged in the trade of buying and selling slaves as the agent of Celestia A. White, using in such trade the capital and money furnished by his principal, with which he has purchased the negro slaves hereinafter named. And on a settloment made at this date between said Mosely and Cochran, now the husband of said C. A. White, it is ascertained and the said Mosely acknowledges himself indobted to said J. IT. Cochran in the sum of eleven thousand five hundred and forty-three dollars, on account of tho capital furnished by his principal. How, in consideration of the premises and to secure said debt, the said T. P. Mosely transfers, conveys, ‘ and delivers to said J. N. Cochran the following named negro slaves, which are valued, to wit: Jack 1500 dollars, Daniel 1100 dollars, Henry 950 dollars, Leroy 1050 dollars, Henry Smith 1000 dollars, Humphrey 1000 dollars, Reuben 900 dollars, Davy 600 dollars, William 700 dollars, Martha 750 dollars, Sophy 762 dollars, Mary 750 dollars 5 all of which slavos wore purchased as agent aforesaid by said Mosely. This transfer is made on the following agreement and condition: That said J. H. Cochran shall sell at public sale, on a credit of twelve months, taking bond with good security, all of said slaves — the sale to bo made on the' first of April next at Grenada or Oarrolton — unless both the parties hereto shall agree on a different time, place, and terms of sale. And the said parties do mutually covenant and agree that, if on such sale the proceeds thereof shall exceed tho sum of elevon thousand and sixty-two dollars, then and in that event said Cochran shall pay and account to said Mosely for such excess — the intention of the parties is, that Mosely shall have the excess of proceeds of such sale beyond tho said assessed value of the slaves. But if the proceeds of said sale shall be less than eleven thousand and sixty-two dollars, then said Mosely agrees to pay said Cochran a sum equal to such deficit. And to secure further the debt aforesaid, and the performance of the covenants made by said Mosely, the party of the first part, doth transfer, sell, and convey to J. H. Cochran a wagon and five horses, a Rockaway carriage, and a noto executed by William Chandler for seven hundred dollars, dated 16th of January, 1851, and due 1st of March after dale.
      To have and hold said property only as Trustee for the purpose aforesaid. Said Trustee to have power of sale in case it shall be necessary to execute the trust.
      The said parties to this agreement have executed the same in duplicate.
      In faith whereof, witness their hands and seals, date above.
      J. N. Cochean, [l. s.]
      T. P. Mosely, [l. s.]
      The State of Mississippi, > I, T. P. Mosely, have this day returned and re-deliv-Carrol County. 5 ered to J. N. Cochran, negro girl Ann, the property of C.
      A. White, being the slave which said 0. A. White delivered to me in South-Carolina as her agent, to be by me sold; and said Cochran has delivered to me my receipt, which I had executed for said slave. Witness my hand and seal, this 13th day of March, 1851.
      T. P. Mosely, [l. s.]
    
    
      
       The paper marked “ F” is as follows :
      THE STATE OF MISSISSIPPI — CAEBOL COUNTY.
      This agreement, made this the 13th day of March, 1851, between T. P. Mosely of the first part, and J. N. Cochran of the second part, witnesseth : That for the purposes and considerations expressed in an agreement made and executed between the parties above-named, of even date with this agreement, the said party of the first part doth transfer, convey and deliver to said J. N. Cochran, two other negro slaves, named and valued as follows: Srandison at $1000, and Silvey at $700. This conveyance is made and executed on the same conditions expressed in the agreement above referred to, and the contracting parties hereto do mutually covenant to perform in reference to the two slaves above-named, all the stipulations made in reference to the slaves conveyed in the agreement of even date with this.
      And whereas, it was stipulated in the power of attorney executed by Celestia A. White, in Abbeville District, South-Carolina, and dated 27th November, 1850, that said T. P. Mosely should account to and pay over to said Celestia A. White all profits that should accrue in the business of said agency in the buying and selling of slaves. And the said agreement of even date with this above referred to, having fixed the amount of money advanced to said Mosely by his principal at $11,543 00. Now, after the payment of said sum of money from the sale of the slaves in the manner stipulated in the agreement of this date, the balance would constitute profits-1 — and the said C. A. White having created this agency for the benefit of her sister, the wife of said Mosely, the said Cochran, in consideration of the premises, doth release and give all such profits to said T. P. Mosely, only as trustee, to hold the same for the sole and separate use and benefit of his wife, Prances E. Mosely, as a separate estate. — it being the intention of the parties that whatever sum is paid to Mosely,.as excess on sale of slaves, beyond assessed value, as providod by both agreements, after the original debt aforesaid is satisfied, should be received by Mosely only as trustee on the trusts aforesaid: signed and sealed in duplicate.
      In faith whereof, witness our hands and seals.
      J. N. Cochean, [l. s.]
      T. P. Mosely, [l. s.]
    
    
      
       The paper marked “H” is as follows :
      Know all men by these presents, that I, Tarleton P. Mosely, of the District of Abbe-ville, and State of South-Carolina, but now in the city of Jackson, in tho State of Mississippi, have this day plaoetl in the hands of Edward Herndon, of the County of Monroe and State of Mississippi, the following named negroes for the purpose of selling, to wit: Jackson, Silvoy and child, Edwin, Ampy, Cato, Chaney, Isabella, Mary Prances, Robert, Sarah, Sally, Emily, Mariah, Mary, Rose and her two children, Henry and Tom, Rollin, infant child, Grandison, Humphrey, Daniel, Leroy, Henry, Reuben, william, Davy, Martha, Sophia, Ann, Eliza, Louisa, Sylvey, George, Jackson, the Carpenter; and the said Herndon is by these presents authorized to take into possession and keep said negroes, until he shall be able to make sale of them to the best advantage, and he is authorized to remove said negroes to any place within the State of Mississippi that he may think best. And I bind myself to pay all necessary expenses for said removals, and all other necessary expenses accruing in any way relative to the sale of said negroes aforesaid, and the said Herndon is authorized out of the sale of said negroes, (the first sold,) to appropriate to his own use the sum of eleven thousand five hundred dollars, which is due to him from me, and for which he holds three due bills (as follows): Ono for three thousand dollars, dated February 18th, 1851; one for thirteen hundred and fifty dollars, dated February 18th, 1851; one for seven thousand one hundred and fifty dollars, dated February 19th, 1851. And after the above-stated amount is received by the said Herndon, then the due bills before-mentioned are to be handed to me, the said Mosely, with all the neat proceeds of sale of negroes over and above the before-mentioned sum of eleven thousand five hundred dollar's. Now, in consideration of the premises hereinbefore stated, he, the said Herndon, is by me fully authorized to sell, swap, or dispose of in any way he may think best, any or all of said negroes, and I bind myself to ratify and confirm said sales, swaps, or transfers, as fully and amply as if done by me in person.
      In witness whereof, I have hereunto set my name and affixed my seal, this Jackson, Mi., February 19th, 1851. T. P. Mosely, [seal.]
      Attest~J. L. Stubblefield.
    
    
      
       The paper marked “ B” is as follows:
      Received, of Leonard J. white, one thousand dollars, in addition to throe thousand dollars received from him hy me on the tenth day of February last, which I have been using as his agent in the trade and traffic of negroes, making in all that I have received of him, tho said White, four thousand dollars, which I am to use as his agent and for his entire use and benefit in the trade and traffic of buying and selling negroes; and X am to return to the said Leonard J. White the said four thousand dollars, and all the neat profits that may be made by mo in said trade and traffic, whenever he, the said Leonard J.-White, shall call for or demand the same. Witness my hand and seal, the 2d July, 1849. T. P. Mosely, [l. s.]
      Test — X>. DoueLAss.
    
   The opinion of the Court was delivered by

Withers, J.

The grounds of appeal present no complaint of the law laid down to the jury, but it is urged to this Court that there was either no evidence to support the verdict, or so little and that so equivocal, as to warrant this Court in directing another investigation.

It is hard to lay down any useful or practical rule as a guide, where the ground is such as that above-stated in regard to the quantum of evidence. If there be none to support the verdict, of course it must go back ex debito justicia,. That which is slight to one mind may be strong to another. It may be, indeed, that this Court, if acting as a jury, might resolve a set of circumstances otherwise than the lawful arbiters of facts may have done. It is precisely that degree of liberal discretion which must be lodged in the tribunal of last resort, necessary to the ends of justice by the consent of all sound writers, reinforced by the experience of the profession, which most embarrasses this tribunal. We have subjected the facts reported in this case to a review, and are constrained to the conclusion, that there is no sufficient ground to say, the verdict rendered is without evidence, or that the evidence is so insufficient and inconclusive as to render the jury liable to the charge of caprice.

Two days before Mosely signed the note sued on, professedly as agent of Mrs. Cochran, (then White,) a paper was executed by Mosely, which seems to have been intended for execution by Mrs. White, which shows that she advanced a certain sum of money to Mosely to use in a traffic in negroes. But this does not exclude the idea that he was to be confined to that sum, and to deal by purchasing for cash only in all cases. The profits expected from that sum were intended mainly, if not wholly, for the benefit of Mrs. Mosely. It was in evidence that Mosely had an interview with Mrs. White about the purchase of Sophy, for whom (and a horse) the note sued on was given, and she consented to the purchase of the negro ; that he, Mosely, assured the plaintiff he was authorized to bind Mrs. White by the note ; that Cochran pursued Mosely to Mississippi, having first procured the note from the plaintiff for collection, leaving a copy and receipt, and promising the plaintiff that if he found the negro Sophy, and the horse, in M.osely!s possession, he would pay the note ; if not, it should be returned ; that he did, in fact, get Sophy and the horse from Mosely; that the amount of the note was charged against Mosely in a settlement with him, which became thus a credit to Cochran on the account which Mosely rendered for his agency for Mrs. Cochran. It further appeared, that in such accounting between Cochran and Mosely, the “capital” which the latter was charged with having received from Mrs. Cochran was stated to be $11,543; which sum was beyond the cash aggregate which it appeared Mosely and his wife had received from Mrs. White (now Cochran).

We cannot say that these facts might not authorize a jury to conclude that so much of this “capital” as consisted in the purchase money of Sophy, or, in other words, as arose from the note given to the plaintiff, was recognized as having been advanced by Mrs. Cochran, dum sola.

It was argued, however, as matter arising on the report of this case, that this was not sufficient to support the idea of a ratification by these defendants — that what Cochran did could not implicate his wife. It is enough to say, that it was not so held on the circuit. In order to guard the jury against that position assumed for the plaintiff, they were instructed that the acts of Cochran could not reflect back so as to infuse any new force into an act of his wife while sole, or to fix on her a liability, as originating then, which she had not assumed — or become, in other words, a cause of action against them both. But that this species of evidence might be taken for what it was worth, upon the inquiry whether Mrs. White authorized Mosely to sign the note in her name.

We do not perceive any good ground to gainsay this. It may not be very cogent proof — but that is not the test. It was the least effect it could have, and must be allowed that much, to bear in that direction, or to have no bearing at all. It could not be excluded from the case, for it was in without objection.

Suppose Williams had applied to Cochran, at his house, and the day after his marriage, for payment of this note, and he had said, I am ignorant of the transaction; I will inquire of my wife;” — and on consulting her, had forthwith said, “It is all right — -the note shall be paid — surely this would have been pertinent and competent evidence for Williams in an action on the note. Yet, it is of the same grade .(perhaps would be of greater force) as that derived on the trial from Cochran’s acts. If'obnoxious to objection, it would seem to be on a ground that would neutralize anything that could be done pending the claim against Cochran and wife, upon a contract' alleged to be made <fawn sola. She could make no admission, in his absence, that would bind him ; but she could, in his presence, he assenting, expressly or impliedly. She could not do the former, because the-liability was his — he was bound to pay her debts. Yet they could have confessed judgment, it is presumed, in this very case. She could not be made to pay the judgment during coverture ; certainly not unless she had a separate estate, and probably then only in a Court of Equity. Cochran could release a note due to her, or he might recognize one due by her, or pay it. The difference is great between the admissions of the wife and those of the husband, where the question is, as to her debt contracted dmn sola. In the choses for or against her, his is the legal interest when action is brought. She might collude, or be entrapped, to defraud him as to debts due or debts owing on her account. She is not sui juris, but he is. It seems unreasonable to affirm that the wife must be made a party to a record, and yet that no admission of the cause of action by her, with the knowledge and concurrence of her husband, shall be heard, if not to establish the plaintiff’s right, at least to advance his cause. The legal disability visited on her as to independent acts or admissions, is quite necessary to protect the husband— and though the judgment obtained against both might survive against her, if the husband does not pay it, (or take the benefit of the insolvent debtor’s law, which would work her final discharge as well as his, Lockwood vs. Salter, 5 B. & Ad. 303 ; 27 Eng. C. L. R. 82,) though pending the action if the husband die, it may proceed to judgment against the wife — though in such case, it may be, his admissions would not be evidence against her, being sole defendant — yet this does not come up to this case, where the husband’s admissions, or acts, are tendered against himself and wife, joint defendants, on the trial of the cause against them. If husband and wife be joint plaintiffs on a cause of action accruing to the wife while discovert, and the defendant offer a discount, cannot the husband admit it and the wife be bound to accept a judgment rendered for the residue 7 and this, though it 'be conceded, that if by the death of the husband she should become sole plaintiff, she may repudiate his admissions which have not been yet ratified by a judgment 7

These considerations tend to show that Cochran’s acts or admissions, if strong enough to import so much, might conclude the wife while they remain joint defendants. But however that may be, they reconcile us to the opinion that the force and effect which was allowed to them on the circuit operated no legal wrong to the appellants.

Wherefore it is adjudged, that the motion be dismissed.

O’Neall, Wardlaw, Frost, Whitner and Glover, JX, concurred.

Motion dismissed.  