ORDER ON PETITION FOR REHEARING Respondents have filed an elaborate petition for rehearing. They allege misconception and misconstruction of issues, and errors in findings of fact, by the Court.
The controlling issue made by the petition is that which alleges that the Court erroneously decided the case upon the theory that Barrett Co. were the agents of Clark Co. and that the doctrine of respondeat superior was applicable; when it should have held that Barrett Co. and Clark Co. were joint tort-feasors, in that they were jointly interested in receiving and employing in illegal cotton future transactions money embezzled by Swetenburg from the National Bank of Honea Path.
Whatever may have been the theory of plaintiff in the matter, the case was tried upon the principles applicable to the relation of principal and agent. Throughout the trial the effort was to show that Jones, the employee and manager of the office of Barrett Co. at Anderson, acted for Barrett Co. as the agent for Clark Co. in the transmission of funds sent them by Swetenburg to Clark Co. Respondents in their petition for rehearing urge that in addition to the question of agency there was one of joint tort-feasors.
In their brief respondents' attorneys say: "The Court will please observe that the charge of the learned trial Judge, and particularly plaintiff's request to charge, dealt only with the first principle, and left it squarely to the jury to decide whether or not Clark received embezzled fund with knowledge or notice. This therefore involved the issue of theagency of Barrett or the Anderson office, or J.C. Jones,manager, as one of the principal question in the case." (Italics added.)
The first principle there alluded to is thus stated by respondents in their brief: "That a broker who receives trust funds from a customer to be used in illegal or gambling *Page 23 transactions, with knowledge or notice of the customer's unlawful conversion or illegal use of trust funds, becomes himself a trustee for the amount received. If one or more participate, they may be sued together, as co-criminals, or at least joint tort-feasors, and the cestui que trust can proceed against the second trustee or trustees."
In their brief respondent's attorneys say: "It is admitted that Jones, Manager of the Anderson office, represented Barrett. It is conclusively established that the Anderson office and Jones represented Clark. This question of agency wassubmitted to the jury under appropriate instructions." (Italics added.)
Again they say: "This question of Jones and Barrett'sagency of Clark underlies the question of Clark's knowledgeor notice, and is presented by the issues of several exceptions." (Italics added.)
The presiding Judge, of his own initiative, charged the jury as follows: "An agent is one who transacts business for another, and a partnership and the individual members of the partnership, or all or any of its employees, may be the agents of another partnership, and if so they are bound by the knowledge of such agent."
The Judge did not charge, nor did plaintiff's counsel request him to charge, the doctrine of joint tortfeasors. The case was submitted to the jury upon instructions pertinent to the issue raised by the theory that Barrett Co. were the agents of Clark Co. If counsel had desired the doctrine of joint tort-feasors submitted to the jury, it was their duty to request that it be done.
It is inconceivable that the jury, under the instructions upon which the case was submitted to them, could have found a verdict against Clark Co. except upon the theory that Barrett Co. were the agents of Clark Co.
It does not need that authorities be cited in support of the proposition that if the agent be exonerated of any action which would make the principal liable through his conduct, no liability will attach to the principal. *Page 24
We think that under the instructions upon which this case was submitted to the jury the doctrine of respondeat superior is applicable.
It may be that certain recitals in the main opinion may be in error on immaterial matters; but in the light of our holding herein upon the main issue they have become immaterial.
Accordingly, the petition for rehearing is denied.