Denman vs. Bloomer. of the vendee. But a special agent, to sell, can sell only for cash, and the insolvency of the vendee cannot, therefore, affect the principal. Story Ag., secs. 77, 78; Delafield vs. Illinois, 2 Hill, 159; Falls vs. Gaither, 9 Porter, 605. 6. A promise of the principal to pay money, on a transaction wherein the agent had no authority to bind him, is a nudum pactum. In this case, it is clear Bloomer never intended to make a binding promise; for he all the time refused to pay or to accept the bill. Fenn vs. Harrison, 3 T. R., 754; May vs. Coffin, 4 Mass., 341; Tower vs. Durrell, 9 Mass., 332. And any promise to bind the principal in such case, or in any case where the agent had acted without authority, should be clearly shown to have been made with a full knowledge of the facts, and the promise must be full and unequivocal. Story's Ag., sec. 244, and note 245, 246; Thornton vs. Wynn, 6 Cond. R., 508, 512; Trimble vs. Thorne, 16 John., 151, 153; Garland vs. Salem Bank, 9 Mass., 408; Miller vs. Hackley, 5 John., 375, 384-5; Bell vs. Cunningham, 3 Peters, 69, 80, 81; Owings vs. Hull, 9 Peters, 607, 629; Blevins vs. Pope, 7 Alabama, 371; Thorndike vs. Godfrey, 3 Greenl., 429, 432; Smith vs. Gibson, 6 Black., 367. III. No cause for a new trial. The evidence to sustain the verdict of the jury is abundant. 1. It is only in cases where the verdict strikes the mind, at the first blush, as manifestly and palpably contrary to the evidence, that the Supreme Court will, for that reason, interfere to set it aside. Dawson vs. Robbins, 5 Gilm., 72; Kincaid vs. Turner, 2 Gilm., 618. Nor will the Court set aside the verdict because, on an examination of the evidence, the Court might have arrived at a different conclusion. Wendall vs. Stafford, 12 N. Hamp., 171. Nor where the credibility of witnesses is to be considered, presumptions to be raised, or inferences to be made; or where, from the character or nature of the evidence, different persons might come to different conclusions. Wendall vs. Stafford, 12 N. Hamp., 171; Rowley vs. Kinney, 14 John., 186. Nor where justice has been done, even though the verdict is against evidence. Peck vs. Land, 2 Kelly R., 16. 2. Nor will the Court grant a new trial, because the Court below misdirected the jury, if the Supreme Court can see from the whole record that justice has been done. Greenup vs. Stokes, 3 Gilm., 202; Leigh vs. Hodges, 3 Scam., 15; Goodell vs. Sweat, 1 Gilman, 475; Seare vs. Prentice, 8 Denman vs. Bloomer. East, 348; Pate vs. The People, 3 Gilm., 644; Edmonson vs. Muchell, 2 T. R., 4; Eastwick vs. Calland, 5 T. R., 426; Fleming vs. Gilbert, 3 John., 528. 3. Nor is there any ground shown in the record for a new trial, on the ground of surprise. Neither the reasons for a new trial, nor the affidavit, are contained in the bill of exceptions; nor does the bill of exceptions purport to contain them. They are no part of the record. They should have been specifically referred to and identified by the bill. Vanlandingham vs. Fellows, 1 Scam., 233; Fry vs. Riley, 3 Scam., 259; Saunders vs. McCollins, 4 Scam., 420; Corey vs. Russell, 3 Gilm., 366; Wyman vs. Wood, 25 Maine, 436; Wadlington vs. Gary, 7 Smedes & Marsh., 522; Edwards vs. Patterson, 5 Gilm., 126; Holmes vs. The People, 5 Gilm., 479. 4. A plaintiff can in no case claim a new trial, on the ground that he was surprised by defendant's testimony, and had not come prepared to meet it. He may suffer a non-suit and recommence, but shall not lie by and speculate on the verdict. He may be surprised when the evidence is given, but he is not surprised when he, of his own accord, submits his case to the jury on the evidence, after he knows what it is, and when his position as plaintiff permits him to retreat. It is otherwise with the defendant, perhaps he cannot retreat. Cummings vs. Walden, 4 Blackf., 308; Cook vs. Berry, 1 Wilson, 98; Jackson vs. Roe, 9 John., 77; Price vs. Brown, 1 Strange, 691; Knox vs. Work, 2 Binn., 582, and note; Alexander vs. Byron, 2 John. Ca., 318; Marriott vs. Hampton, 7 T. R., 142. 5. Nor will a new trial be granted on the ground of newly discovered evidence, where the evidence was known before the trial, or by reasonable diligence might have been produced; or where the object of the new evidence is to impeach a witness. This was all known to Denman before the trial; and as he was dealing with an agent, he was bound to come prepared to prove that defendant was the responsible principal, and not rely on its being admitted or proved by defendant on the trial. Coe vs. Givens, 1 Black., 367; Williams vs. Baldwin, 18 John., 489; 15 John., 213; 5 John., 248; 3 John., 256; 1 Scam., 491; 1 J. J. Marsh., 590; Wheelwright vs. Beers, 2 Hall, 391, 402; 3 Scammon, 486. Nor to admit evidence of the admissions of the opposite party. The cases of the party moving for a new trial on this ground, are persons acting in a fiduciary or representative capacity. Gugot vs. Denman vs. Bloomer. Butts, 4 Wend., 479. The affidavits of the proposed new witnesses should, at least, have been produced, to show they were ready to give the proposed testimony. 4 Blackf. Rep., 98; 1 Hall, 382. As Mr. BUSHNELL was proceeding to answer the arguments urged for a new trial, for the reason that plaintiff was surprised by the testimony of Johnson, he was stopped by the Court, with the suggestion that the plaintiff should have taken a non-suit in the Court below, if he did not wish to go to the jury upon the evidence presented. He ought not to be allowed to take his chance for a verdict and then complain that he has been surprised. Opinion by Mr. Justice CATON: The fifth and eighth instructions given for the defendant, were erroneous. The eighth instruction supposes that Bloomer was the owner of the raft, and that Johnson was his agent to sell it, and receive the purchase money. The jury were then instructed, that if Johnson had sold and delivered the raft to Denman, and received a part of the purchase money, he had no authority to rescind the sale, and make Bloomer liable for the money thus received. An agent appointed for a special purpose-to transact a particular business, cannot go beyond the scope of such appointment, and bind his principal; nor can he act after such employment ceases, by his having completed and closed up the business, to transact which he was constituted an agent; but within the scope of such employment, and until the power conferred is thus exhausted, or has been revoked, the agent can bind the principal, to the same extent that the latter could have bound himself. In this case, Johnson's powers had not terminated by his having completed the business confided to him. He had sold the raft, it is true, but he had received only a part of the purchase money, while his employment required him to collect the whole. To deny the authority of the agent to take back the raft, while the transaction was thus incomplete, would often prove most detrimental to the principal. Suppose the agent had discovered that Denman was insolvent, and that, in all probability, the balance of the purchase money would be lost, autho Denman vs. Bloomer. rity to rescind the sale, and take back the raft, would have been indispensable to enable him to protect the interest of the principal. This is not so strong a case as that of Anderson vs. Coonley, 21 Wend., 279. There the agent was authorized to contract for barley, and it was held, that he might rescind a contract which he had made, so long as his authority to make other purchases still continued. The case of Bradford vs. Bush, 10 Alabama, does not conflict with the principles above laid down, or with the case referred to. There the agent was authorized to sell some horses, which he disposed of to the defendant, and received other property, and a note, in payment. It was held that the agent could not, at a subsequent time, bind his principal, by a new agreement, to make good a defect in some of the horses. Clearly, in this case, the powers of the agent were exhausted, and his authority terminated. The case before us, however, was very different. The agent had but partially completed the transaction, when he thought proper to rescind what had been done; and in doing this, we think he acted within the scope of the authority, which the instruction supposes was conferred upon him, and perhaps for the best interests of his principal. The fifth instruction, also, should have been refused. All that is assumed in that instruction might have been true, and the plaintiff still entitled to recover. It will be sufficient to give one assumed state of the case, to show this. Bloomer might have ratified all that Johnson is supposed to have done in his name; in which event, the defendant's liability would have been the same as if the agent had acted strictly in pursuance of his original appointment. This same objection may be urged to the eighth instruction. It is not sufficient that the necessary qualification may be found in the instructions given for the plaintiff; unless we can say, with entire confidence, that the jury could not have been misled by the erroneous instruction. After looking through all the instructions given for both parties, we are by no means prepared to say, that the jury must, necessarily, have understood the law of the case properly. Each party should see that his own instructions are proper in themselves. The impropriety of giving instructions like those given in the present case, subject on one part to the modifications of the instructions given on the other, is thus spoken of in Gregory's 11 194 30a 330 11 194 134 515 11 194 Morgan vs. Smith et al. heirs vs. Ford, 5 B. Monroe's Reps., pa. 473: "The instructions asked for by the plaintiff are said, in the bill of exceptions, to have been given with the qualifications contained in the instructions given on the part of the defendants;' as the instructions given for the defendants are numerous and complicated, this general reference to them, as qualifying instructions, apparently given for the plaintiff, without designating the particulars in which they are intended to be qualified, or pointing out the particular instructions which conflict with each other, is objectionable, as wanting that certainty which is requisite to enable the jury correctly to apply the law to the facts before them." The judgment below is reversed, with costs, and the cause remanded. Judgment reversed. THOMAS MORGAN, appellant, vs. WILLIAM SMITH, SAMUEL Appeal from Scott. A covenant by the obligor, in a bond to convey land, by executing and delivering to the obligee "a good and sufficient general warranty deed," is not satisfied, without the conveyance of a perfect title, free of all incumbrances. The grant of an easement authorizing the grantee to dam up, and use the water of a branch running over the land of the grantor; and, also, to use the water of a spring upon it, is an incumbrance. A covenant to convey land, free of all incumbrance, is not complied with by the tender of a deed to the covenantee, with the reservation of an easement, previously granted, by the covenanter to a stranger. The existence of such an easement being a breach of the covenant against incumbrances, It is a well settled principle, that the allegations and proofs must correspond, and that a of them. It is no defence to a bill alleging a breach of a covenant against incumbrances, that the covenantee knew of the existence of the incumbrance, at the time of the making of the covenant. |