Kemper v. Turner

delivered the opinion of the court.

The defendant sued for the amount of a judgment obtained by him for the plaintiff, rested his defence on a credit given therefore to the plaintiff’s brother, from whose hands, he alleged the claim sued on had been received for collection.

There was judgment for the defendant, and the plaintiff appealed after an unsuccessful attempt to obtain a new trial.

Our attention is first drawn to a bill of exceptions taken by the appellant’s counsel, to the opinion of the District Court, in permitting the record of a suit of the appellee against the appellant’s brother, in which the latter gave credit for the amount of the judgment.

The appellee had interrogated the appellant on the agency of the brother; and it had been denied. To destroy the evidence resulting from the appellant’s answer, the appellee had introduced a witness, and sought, by a chain of testimo-ny>to establish the appellant’s knowledge of and assent to the acts of the brother. It therefore became important to esta-blislx a settlement with the brother, and of this special fact a judgment against the latter was legal evidence.

We think the record was properly admitted as legal, but not conclusive evidence, against the appellant.

On the merits, although we are not ready to admit, ha- # ° • ing already held the contrary, that credit given- to the agent dissolves the principal’s debt. The jury may have correctty inferred from the relation between the principal and agent, the conduct and long silence of the former, that if this ^ ’ , 6 . . . , , , mode of settlement was not made ¡with the principal s knowledge and consent, it was afterwards approved-

It *s> therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs. 1 °

KEMPER vs. TURNER.

This case is now before us on a rehearing.

When we acted on it before, we thought, that although we were not. ready to admit (having already held a contrary *151doctrine,) that credit given to the agent extinguishes the debt of the principal, the jury might readily have inferred, from the relation existing between the principal and agent in the present case (they being brothers), and the conduct of the principal, and his long silence and’apparent acquiescence,, that if the settlement effected by the agent was not made with the principal’s consent or knowledge, it was afterwards approved by him. On-reviewing this opinion, we have come to the conclusion, that justice will be better promoted by our sending the case back, for the consideration of another jury, than affirming the judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, the verdict set aside, and the case remanded for a new trial, the appellee paying costs in this court.