CASTLE V. BULLARD, 64 U. S. 172 (1859)

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U.S. Supreme Court

Castle v. Bullard, 64 U.S. 23 How. 172 172 (1859)

Castle v. Bullard

64 U.S. (23 How.) 172


The circuit courts of the United States have no power to grant a peremptory nonsuit against the will of the plaintiff

And where there are several defendants against whom the charge is joint and several, there cannot be, at common law, a nonsuit as to one and verdict against the others, although the verdict may be against one and in favor of the others.

And besides, in this case there was evidence for the jury to say whether the party in whose favor the nonsuit was prayed was guilty or not.

Where several defendants are joined in an action of trespass, a verdict of acquittal against one, in order to make him a witness, can only be demanded where there is no evidence against him. The cases upon this point examined.

Where the cause of action against the defendants was that they had fraudulently sold the goods of the plaintiff, evidence was admissible that they had committed similar fraudulent acts at or about the same time, with a view to

Page 64 U. S. 173

establish the intent of the defendants with respect to the matters charged in the declaration.

The cases upon this point examined.

So also evidence was admissible to show that the purchaser was largely in debt and insolvent, and that the defendants represented him to be in good credit. The force and effect of such circumstantial evidence is for the jury to judge of the intent.

If the goods were fraudulently sold by one of the firm, and the firm received the profits in the shape of commissions, all the partners are responsible for the sale.

In the present case, the instructions given by the court below cannot justly be complained of by the counsel, and moreover were accompanied by explanations which constitute a part of them.

The plaintiffs in error were auctioneers and commission merchants in Chicago, Illinois, the firm being composed of Joseph Filkins, J. P. Phillips, Elihu Granger, and Edward H. Castle. An action on the case was brought against them by Bullard, a citizen of the State of New York. The declaration contained five counts, viz.:

1. That these four defendants were partners, doing business in Chicago, as auctioneers and commission merchants, under the firm and name of Filkins, Phillips & Co., and

2. That certain goods of plaintiff were in the custody of defendants, as such partners, for sale on commission.

3. That, as such partners, defendants sold them to Edmund S. Castle.

4. That E. S. Castle, at the time of the purchase, was insolvent, and not fit to be trusted.

5. That defendants knew at the time that E. S. Castle was insolvent, and effected the sale fraudulently.

The plea of not guilty denied each of these allegations.

The verdict was for the plaintiff in the sum of $2,983.32 and costs.

The bill of exceptions taken upon the trial occupied sixty pages of the printed record, and recited substantially the evidence given to the jury.

In the course of the trial, the following proceedings took place:

Page 64 U. S. 174

After the evidence for the plaintiff had closed and he had rested his case, there appeared to be no evidence connecting Granger with the transaction other than what might exist from the fact of his being one of the partners.

And thereupon defendant, Elihu Granger, moved the court as follows:

The defendant Elihu Granger moved the court to direct the jury to render a verdict of nonsuit, or that the court would order a nonsuit to be entered as to defendant Granger upon the ground that the evidence given to the jury by plaintiff did not tend to charge this defendant. This motion the court overruled, and said defendant Granger then and there excepted to the decision of the court. And thereupon all the defendants moved the court for a nonsuit as to Granger upon the ground that the evidence in the case did not tend to charge him. This motion was overruled by the court, to which decision of the court said defendants, and each of them, then and there excepted, and thereupon said defendants asked the court that said jury might be permitted to retire and consider whether they found the evidence in the case sufficient to charge said defendant, Granger, and if not that the jury might find said Granger not guilty. And the defendants, Castle, Filkins, and Phillips, each urged upon the court, as a reason for this course, that they desired to use said Granger as a witness for their defense if he should be acquitted; but the court overruled this application and motion, to which decision the defendants excepted. Other exceptions were taken as to matters of evidence which need not be here recited.

After the evidence was finished, the court gave the following instructions to the jury, which are inserted in order to show the view of the court below, although the defendants excepted only to the two first:

The court, after saying to the jury that the original and amended declaration alleged in substance that the defendants fraudulently sold the goods for plaintiff to an irresponsible person and also that, in consequence of false and fraudulent representations made by them, the plaintiff consented to the negotiation and sale by them of the goods to an insolvent person,

Page 64 U. S. 175

by which plaintiff sustained loss, and that one of these allegations must be proved, among various other instructions, gave the following to the jury:

"1. If the goods were in the custody of the defendants for sale on commission and one or more of the partners made false and fraudulent representations as to the party to whom they were to be sold by the defendants, then the partnership would be liable if in consequence of such representations the plaintiff consented to the sale to that party and the sale was actually made by the firm to the party."

"2. If, however, these goods were not in the possession of the defendants for sale, but were there merely for safekeeping, and one or more of the partners made false and fraudulent representations as to the solvency of a person to whom it was proposed to sell the goods, and in consequence of such representations the goods were sold and delivered to that person by the plaintiff or he consented to their sale, then the firm is not liable for such false and fraudulent representations unless the firm, as a firm, were party to such representations. That the false or fraudulent representations made by one of several partners, in order to bind the firm, must be made in the course of and in relation to the business of the firm."

"3. If the sale was made by the plaintiff alone, or by the plaintiff through E. H. Castle as his agent, acting in that behalf, and not for the firm, then no matter what were the representations by E. H. Castle, the jury must find for the defendants."

"4. Unless the sale was made or negotiated by the firm, the jury should find for the defendants."

"5. That the fact of a guaranty of the payment of a debt by Filkins is not evidence of fraud nor of want of solvency at that time. There is no presumption that the return of the officer is untrue."

"6. That so far as the motives of the defendants are concerned, no fact proved is to be considered unless the knowledge of such fact is brought home to such defendants."

"7. That all the subsequent transactions mentioned by the witnesses have nothing to do with the main fact of the case

Page 64 U. S. 176

further than this: they are only circumstances to be considered, which may throw light upon the motives of the parties; that if the subsequent acts and declarations can be accounted for reasonably without assuming a fraudulent motive in the transaction of the 8th November, such circumstances are not to be considered or regarded by the jury as entitled to any weight. And they are to have no influence until the jury are satisfied from the evidence that the sale was made by or through the defendants, as commission merchants; that E. S. Castle was not responsible as a purchaser, on the 8th of November, the time of sale, and that the defendants knew him to be irresponsible."

"8. That unless the jury believe that defendants acted fraudulently, as charged in this declaration, it is entirely immaterial whether they, or any of them, acted fraudulently or otherwise in after transactions, or other transactions."

"9. That fraud could never be presumed, but must be clearly proved, but it may be established circumstantially as well as by direct proof."

To the first and second instructions as above stated the defendants then and there excepted, but to none others, the other instructions above set forth being given to the jury at the request of the counsel for the defendants.

The court also said to the jury, that all the instructions given by the court were to be taken and considered together.

Page 64 U. S. 180

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