Childress v. Miller

COLLIER, C. J.

The questions presented for our examination are — 1. Does the first count of the declaration set forth a cause of action against the defendants, with sufficient certainty and precision? 2. Was the evidence of Case admissi *450 ble for the plaintiff, and did that, with the writing adduced, entitle him to a verdict?

1. It is an established rule in the law of pleading, that the declaration must alledge every thing necessary to the maintenance of the action, with such precision, certainty and clearness, that the defendant may know what he is called upon to answer, and that the jury may be able to give a complete verdict upon the issue; and that the Court, consistently with the rules of law, may give a certain and distinct judgment upon the premises. [Cowp. Rep. 682; 6 East Rep. 422; 5 T. Rep. 623.] Facts only should be stated, not inferences or matters of law; and a recovery can only be had upon the facts as they are alledged and proved. [Ibid.] Jigain, pleading must not be ambiguous, or doubtful in meaning; and when susceptible of two different meanings, that construction shall be adopted which is most unfavorable to the party pleading. [Stephens Plead. 378.]

Where one is sought to be charged with the act of another, proof of the authority under which the act was done is indispensable ; [2 Saund. Plead, and Ev. 733,] and as the evidence must harmonize with the pleading, it should be substantially, yet distinctly, alledged that the act was the principals, or authorized by him.

Let us test the first count by these principles. The declaration describing the defendants as “owners of the steamboat Choctaw, and partners in running said boat,” alledges that J. A. Case, Clerk of that boat, for and on behalf of the boat and its owners, the defendants, made and delivered to the payee a certain note, &c. Here is an allegation that Case acted for the boat and its owners, but not that he was authorized thus to act. The words “/or and on behalf” are not of such pregnant import as to amount to an averment of authority. They are terms of extensive meaning, and are sometimes used to indicate the legal representation of another, but they are equally appropriate to characterize an act done in the name of another under an assumed agency; and as words receivable in a double sense, are to be taken most strongly against the pleader, they cannot be held to amount to an allegation that the writing declared on was signed by the procuration of the defendants

*451 What are the powers of a Clerk of a steamboat, we cannot judicially know, and unless his right to represent the owners is stated upon the record, we cannot intend it. An act done by the master of a ship, or boat, seemingly within the sphere of his duties and office, would perhaps be regarded as entirely proper; [Story’s Agency, 151; Paley on Agency, 388,] but in the absence of all proof, we should be disposed to consider the Clerk as a subordinate of the Master, as possessing only such powers as he conferred, or the Master or owners might recognize.

The cases cited by the defendants’ counsel are entirely unlike the present. In the first, the declaration alledged that the bond was executed by the defendants, through their agent, and the Court held, the execution was prima facie good. The other citations, so far as pertinent, only assert that the manner of the execution of a writing by an agent is immaterial, if it appear to be done on behalf of the principal; and that a writing signed by an agent may be alledged to have been made by the principal. These principles are undeniable; but the objection in the present case is, that the declaration does not show that the defendants made the paper through an agent or otherwise, but that the Clerk of the boat undertook to make it for them. If it had been averred that the defendants made it by J. A. Case, their agent, then the declaration would have been good, and they should have been put to their plea.

2. Forming an opinion from the facts disclosed in the bill of exceptions, we think Case was a competent witness under the general rule which permits an agent to give evidence for his principal. [2 Phil. Ev. 96-7, 254-5; 3 id. 1526-7; 2 Sauud. Plead, and Ev. 737.] The writing upon its face, would indicate that Case did not intend to bind himself, but to acknowledge that the owners of the Choctaw were indebted; [Story’s Ag. 144-5,] and if there was any thing to bring the witness within an exception to the general rule, it should have been shown and cannot be intended.

The testimony established, that the defendants were joint owners of the Choctaw, the services of Miller as an engineer, under a contract with the master, and that the sum expressed in the writing, was due at the time it bears date. This was *452 certainly sufficient to have authorized a recovery on the second count of the declaration.

For overruling the defendants’ demurrer the judgment is reversed and the cause remanded.