WILLIAMS v. TOLBERT

MR. JUSTICE GARY.

The complaint alleges, that the defendant, Miller, came to his house while acting as the agent of the defendant, Tolbert, and did break and enter his stables, and take therefrom a mule; and that he likewise broke or removed the lock to the door of the stables.

The action is for damages, and is based upon the allegation, that the defendants wrongfully, wilfully and maliciously invaded his rights in the manner aforesaid. The defendants denied these allegations, and set up the following defense: "That having a past due mortgage upon the mule, mentioned and described in the complaint, this defendant sent his co-defendant, Thomas Miller, to the home of plaintiff, and authorized and instructed him, to take possession of the stock under the defendant's mortgage, but if the plaintiff refused to surrender said stock peaceably, on no account to use any force. That under the terms and condition of said mortgage, given by the plaintiff and owned by this defendant, it was expressly provided, that upon default in the payment of the debt secured by said mortgage that the owner of the mortgage should have the right to seize said property, and sell the same for the purpose of paying off the debts secured thereby. That this defendant did not authorize or direct the said Thomas Miller, to exercise any force in taking said property; but, on the contrary, told him that if the plaintiff refused to give up the property, to apply to the magistrate at Verdery, and get from him the necessary legal papers to take said stock, and if the said Miller proceeded in any way contrary to the law, it was against the wishes and will of the defendant, and contrary to his express instructions to said Thomas Miller."

The jury rendered a verdict in favor of the plaintiff for $327.00, and the defendants appealed upon exceptions, which will be reported.

The first question that will be considered is, whether there was any testimony tending to show, that the defendant, Tolbert, was responsible for the unlawful acts of his co-defendant, Miller. Tolbert testified as follows:

"Q. And Williams, you say, didn't carry out his agreement, about delivering the mule and paying the fifteen dollars? A. No, sir. Q. Then you sent Mr. Miller? A. I sent Mr. Miller on Thursday to get the mule. If he would stand up to the transaction of Monday it would be all right, but if he didn't do that, to seize the mule and horse both, under the mortgage, and bring them to my house and I would advertise them and sell them, and I would get my money I had paid Mr. Starke. Q. What instructions did you give Mr. Miller? A. I told him to go to Reuben's house and get the stock, if he could without any difficulty. I charged him particularly not to have any fuss, but to go there and demand the stuff under the mortgage, show him the mortgage, and if he refused to give it up, to go to Mr. Purdy, the nearest magistrate, and take out the proper papers and proceed according to law. Q. This on the back here (indicating paper) is the authority that you signed? A. Yes, sir. That is the authority that I signed."

The endorsement on the mortgage is as follows: "I hereby appoint Mr. T.W. Miller my agent to collect this claim.

January 5, 1905. R.R. TOLBERT, JR."

The allegations of the defense show that Miller was authorized to take possession of the mule; and the testimony of Tolbert is to the effect that he instructed Miller to seize the mule and bring it to his house for the purpose of advertising and selling the same. Furthermore, our construction of the endorsement upon the mortgage, is, that it empowered Miller to resort to usual method of collecting the amount due on a chattel mortgage, to wit: by seizure and sale of the property. Tolbert unquestionably conferred upon Miller the power to take possession of the mule, though his instructions were to seize only under certain circumstances.

When, however, the power to make the seizure was delegated to Miller, the manner of taking possession was, apparently, incidental to such authority, and within the scope of agency. Therefore, Tolbert was liable for the misconduct of Miller, under the doctrine that the principal is responsible for the acts of the agent within the scope of his apparent authority, although he may act contrary to the directions of the principal. Rucker v. Smoke, 37 S.C. 377, 16 S.E., 40: Reynolds v. Witte, 13 S.C. 5: Hutchison v. Real Estate Co., 65 S.C. 75, 43 S.E., 295; Mitchell v. Leech, 69 S.C. 413, 48 S.E., 290; 66 L.R.A., 723.

These views practically dispose of all the exceptions except the following: "Because his Honor erred in not granting a new trial when his own statement shows, that he did not approve the verdict of the jury."

The presiding Judge, in refusing the motion for a new trial, says: "I confess very frankly, that if I had been fixing the amount of the verdict, I should have made it less than that. But the question with me is a serious one, whether I can conscientiously say it is too much. * * * What would be a proper punishment in the case, I think was entirely for the jury, unless their verdict had been so outrageous, as to shock my conscience, while it is a little more than I anticipated the jury would find, if they found for the plaintiff at all. * * * I do not think this is so excessive, as would justify me in cutting it."

A Circuit Judge is not compelled to grant a new trial, simply because he would have been in favor of a verdict for a smaller sum, in case he had been on the jury. All that the law requires of him is the exercise of a sound discretion from which there is no appeal to this Court.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.