This was an action of assumpsit to recover
At the trial, the defendant admitted that this balance was due, if it had not been paid, and took upon himself the burden of proving payment.
In support of the defence of payment, it appeared that the defendant purchased a bill to the amount of the balance and remitted it to L. T. Potter; but the bill was dishonored and not paid, and the question was, whether the remitting of the bill was payment, so as to exonerate the defendant from further liability for the balance. Whether the defendant discharged himself from such liability, by investing the plaintiff’s funds in the bill which was remitted, must of course depend on the instructions under which he acted. The defendant was an agent, and if he acted with care and fidelity, in accordance with his instructions, then he can have incurred no personal liability, but the risks and liabilities of his acts fall upon his principal. The inquiry, then, is, What were the instructions given him in relation to the proceeds of the cargoes consigned to him for sale?
The report of the case states, that the cargoes were consigned to him with general directions to remit the proceeds to L. T. Potter. The defendant was not to retain the proceeds until drawn for, but was ta remit them, without being instructed at all as to the particular mode in which the remittance should be made. In the absence of instructions as to the mode of remittance, the defendant properly performed his duty and well fulfilled all his legal obligations, if he conformed to the usage in such cases, and transacted the business intrusted to him as such business was usually transacted. Accordingly, evidence was introduced by the defendant, to show that it was the usage in such cases to remit by bills
The instructions prayed for were refused by the judge, on the ground, that there was evidence in the case tending to show that the bills remitted should be indorsed or guarantied by the person remitting; and it was maintained by the plaintiff, that the bills remitted should be indorsed or guarantied by the party remitting, and that the burden of proof was on the defendant to show affirmatively that the bills need not be so indorsed or guarantied. The position, taken by the plaintiff, as to the burden of proof, was sustained by the presiding judge, who accordingly instructed the jury, that the defendant, to exonerate himself from liability, must take the burden of proof and prove that the bills remitted need not be indorsed or guarantied by the person remitting.
In the opinion of this court, the instruction was erroneous. The defendant being instructed to remit generally, without any direction as to the mode of remitting, he would be discharged from liability, if he remitted in a mode usual in such business. The defendant maintained that the usual mode was to remit by bill, and that proof of a usage to remit by bill would make a good prima facie defence. It was sufficient for the defendant to show a usage to remit by bill; and, if made out, such usage constituted a good defence. To show a usage to remit by bill, so as to authorize the defendant to remit in that way, the burden was on the defendant, and
Applying this rule to the present case, the defendant took upon himself the burden of proof to show a usage to remit by bills, which was the proposition stated by him, and if established would make a good prima facie defence. But the plaintiff to defeat this defence set up another proposition, that the bills thus remitted must be indorsed or guarantied by the party remitting, and to establish this last proposition set up by him, the burden of proof was on the plaintiff.
It would seem to be a remarkable usage, that an agent was bound to guaranty bills purchased for his principal, without any engagement so to do, and without being paid any thing for such guaranty. Whether the bills which were remitted by the defendant, and credited by the plaintiff, were indorsed or guarantied, does not appear in the report, though that fact might have had an important bearing on the question of the defendant’s obligation to indorse or guaranty such bills.
The instructions of the court below being erroneous, the verdict must be set aside and a hew trial granted in this court