Kelly & Brother v. Kauffman Milling Co.

Bleckley, Chief Justice.

1. The bill of lading offered and received in evidence was a duplicate, and so purported to be on its face. The motion for a new trial complains that its execution was not proved as required by law. We cannot tell whether it was or not, for it is not stated that there was no evidence tending to prove it, nor is any evidence on the subject set out. Its absence from the brief of evidence is of no significance, because the office of the brief is only to show such evidence as was submitted to the jury, and the jury have no concern with preliminary evidence adduced to the court as a basis for introducing a document to be read as evidence in the case. Here there is no authentic statement that there was no evidence of execution, and any evidence which there may have been is not brought up. There is nothing to guide us, therefore, but the presumption of law that the court, before admitting the duplicate bill of lading, became satisfied by proper means that it was a genuine document duly executed.

2. From the duplicate and the other facts in evidence it is manifest that there was a genuine original bill of lading covering the consignment involved in this case, and that this original indorsed by the consignees, Kelly & Bro., was turned over to Boozer, the broker, and by him to Morris, Ewing & Co., to whom he sold the carload of flour, and that they surrendered it to the railway company upon receiving the flour. The pressure of the *107 litigation was not upon the existence or contents of the bill of lading, but upon the legal consequences of indorsing it and turning it over to the broker, thereby enabling him to dispose of the consignment and appropriate the proceeds to his own use to the prejudice of the Kauffman Milling Company, the consignor,the plaintiff in this action. Grant, therefore, that it was error for the court to admit secondary evidence of the contents of the document without the omission to discover and produce the original having been fully and legally accounted for, this is no cause for a new trial. The evidence, as well that in behalf of the defendants as that in behalf of the plaintiff', could have no proper subject-matter without the assumption or concession that there was in fact a shipment of the flour and a genuine bill of lading therefor, with contents such as appear in the duplicate bill introduced in evidence. It would be child’s play rather than serious judicial work to send^he case back for another trial in order that this original bill might either be produced or its non-production more satisfactorily accounted for.

3. The contract of sale from the milling company to Kelly & Bro. was negotiated through Boozer, a broker in Atlanta. The flour was consigned from a point in the State of Illinois to Kelly & Bro. at Atlanta, Ga., and the railroad receipt, or bill of lading, was sent by mail by the former to the latter. This action is brought for the price, and the defence is that Kelly & Bro. did not receive the flour, but that the broker took charge of it and sold it. To this defence it is replied that the broker had no authority so to do, and could not have assumed and exercised such authority to the injury of the milling company without the co-operation of Kelly & Bro., who indorsed the bill of lading which had been sent to them, and turned it over to the broker. We think the broker, being a mere middleman to negotiate *108 the sale, and having no express authority to do more, could not rescind the contract or receive the flour and bind the milling company by his conduct. It was sought to enlarge his authority under the general law by local custom or usage prevailing in Atlanta, under which brokers were recognized as representing the persons who had employed them to sell, in afterwards cancelling the sales and taking charge of the goods. But the evidence fails to show any knowledge of this local custom or usage by the milling company or any dealing by it with reference thereto. There is no ground for inferring its assent to such a custom.

4. The evidence was sufficient, and there was no error in denying a new trial. Judgment affirmed.