Bliss v. Hosmer.

Canal Commissioners, and each of them, by themselves, and by any and every superintendent, agent and engineer employed by them, to enter upon, and take possession of, and use all and singular any lands, waters, streams and materials, necessary for the prosecution of the improvements," &c., "doing no unnecessary damage." A subsequent statute conferred this same power of the Canal Commissioners upon the Board of Public Works. That part of the act which I have quoted, is copied in the very words of the law of New York, of 1817. Under this law, the Courts of New York have held, that an engineer, employed by the Canal Commissioners, to whom was given the superintendence in constructing a portion of the canal, was authorized to enter upon the lands of individuals, and take materials for the furtherance of the work, without any express orders or direction of the commissioners. Lyon v. Jerome, 15 Wend. 569. Wheelock v. Young and Platts, 4 Wend. 647.

The reasoning of the Court in those cases, is applicable to this. As is said there, so say we here, that a construction of the law that would require every act done by the resident engineer and superintendent to be especially authorized by the Board, or one of its members, could not have been within the contemplation of the Legislature: it would have embarrassed the work, and was not practicable. True, the act of entering lands to take materials necessary for the work, by statute, is to be done by the Board, or one of its members; but how to be done? The law says, by one of their number in person, "and

by any and every superintendent, agent and engineer em'ployed by them." When done by an engineer duly employed by them, the act is the act of the Board, and the engineer or agent must justify it as such. The fault of the pleas first filed in this case, consisted in a neglect to aver an entry under the authority of the Board. The amended plea, upon which the verdict was taken, is liable to no such objection.

We now come to the instruction complained of. Take it altogether, and we are still satisfied with it. The jury were

Bliss v. Hosmer.

Dec. Term,

1846.

told, in substance, to inquire whether defendants were con- IN Bank. tractors; whether they were authorized by the resident engineer to enter on the plaintiff's land and take the timber which had been taken, and whether, in so doing, they did no unnecessary damage; and if so, they should find them justified of the alledged trespass. Had Curtis, the engineer, been joined with these defendants, and justified under the Board of Public Works, and the contractors justified, as they have, this case would not be distinguishable from the case cited from 4 Wendell. Young, in that case, was the engineer, and justified as such; the others acted under his directions, without any specific directions of the Canal Commissioners of New York, and it was held they were not liable in trespass. This case, then, and the justification, is like that, with this difference: here the engineer is not sued, and there both he and the contractors were joined. The article there taken was stone; and it is to be gathered from Young's case, as well as the case in 15 Wendell, that, whether the materials could have been had more conveniently some where else, was a matter of no moment.This brings us to the last clause in the charge of the Court.

The objection does not seem to be much relied upon by counsel, yet it is worthy of a remark. The object and intention of the Legislature has already been stated, in disposing of the main objections of plaintiff, to the ruling of the Court below. The engineer's direction was, to go upon the wood-lands in the vicinity. Counsel had urged to the jury, that the form of expression required the defendant to cut the necessary timber from the lands nearest to the lock and dam, that is, nearest to the town. The substance of the charge was, that Curtis meant no such thing; that he intended the contractors might do what the State was authorized to do, go to such land in the neighborhood as was most convenient such as would subject the State to the least sum in damages, and consequently subject the contractors to the least loss. We believe still, that the charge of the Court placed the correct construction upon the letter of the

Bissell v. Couchaine

IN BANK. resident engineer; because the words will bear that construcDec. Term, tion, and because, as a faithful agent of the State, bound to

1846.

deal fairly with the contractors, under the law and in virtue of
the contract, he was under obligation to permit the contractors
to go where they could procure materials to the best advantage.
And he was bound so to act as to secure to the contractors the
benefits of their own skill and capacity as business men. He
had no right to lessen the profits of their contract, by forcing
them to procure timber where it could only be had at an extra
price. Such a course would have violated the spirit of the
contract, and been highly injurious to the contractors. It would
have accomplished what was not right
vantage to the State, or any one else
contemplated, and what both parties to the contract intended
should not happen.

what was of no ad

what the law never

Judgment Affirmed.

FREDERICK BISSELL VS. BENJAMIN COUCHAINE.

Where the facts of a case are submitted to the Court of Common Pleas without the intervention of a Jury, and error intervenes in applying the law to such facts, the judgment will be reversed.

If A deliver money to B, which he promises to pay to C, on the note of A, but refuses so to do, it is not a debt contracted in a fiduciary capacity, and is not within the provisions of the Bankrupt Law of the United States.

THIS suit is brought before the Court by a WRIT OF ERROR to the Court of Common Pleas of LUCAS County.

The declaration sets forth in substance, that, on the 16th day of June, 1841, the defendant in error delivered to the plaintiff in error the sum of $118 in trust, to be by the plaintiff in error applied in payment and discharge of a certain promis

Bissell v. Couchaine.

Dec. Terin,

1846.

sory note for $100, and interest, made by the defendant in IN BANK. error with Bissell and Gardner, on the 12th day of June, 1838, and payable to Chandler Knapp, on the first day of December then next; that the plaintiff in error promised to execute the trust, but had wholly failed so to do, and the note remained unpaid and outstanding against the defendant in error.

Then follow the common money counts. Two pleas were pleaded by the plaintiff in error: 1. Non-assumpsit; 2. A special plea in bar, of discharge in bankruptcy and certificate thereof, granted December 5th, 1842, on a petition filed July 18th, 1842, &c.

The defendant in error replied, that the debt and cause of action arose, and was contracted, in a fiduciary capacity, and that the plaintiff in error had applied said money to his own use, and not in the payment or discharge of the note. The plaintiff rejoined, and put in issue the facts averred in the replication.

On these issues, the cause was submitted to the Court without the intervention of a jury, and judgment given for the defendant in error; and to the finding of the Court the plaintiff in error excepted.

It appears from the record, that, on the trial, the defendant in error, to maintain the issue on his part, gave in evidence the note described, and that the plaintiff in error was one of the firm of Bissell and Gardner, who signed the note as sureties for the defendant in error, the other maker thereof, and that to indemnify Bissell and Gardner, as such sureties, on the 20th day of June, 1839, the defendant in error, as principal, with one Peter Navarre as his surety, executed and delivered to said Bissell and Gardner their promissory note, for the sum of one hundred and three dollars and fifty cents, payable on demand. The defendant in error also proved, that he paid $100 on the last mentioned note to said Bissell and Gardner, with the understanding, that they were to apply it on the note to Knapp. The small balance due on the note, to indemnify Bissell and Gardner, was, afterwards, paid to Gardner, after the dissolution

Bissell v. Couchaine.

IN BANK. of the firm, but was receipted for by him in the name of the Dec. Term, partnership. It was likewise proved, that Bissell and Gardner

1846.

intended to have paid the $100 so received to Knapp, on the note first mentioned, but the firm soon after becoming embarrassed, failed, and said note remained unpaid. The payment to Bissell and Gardner was proved to have been made before the discharge of Bissell, the plaintiff in error, in bankruptcy, and the counsel for him therefore submitted a motion for a nonsuit. This motion was resisted by the counsel for the defendant in error, on the ground that the debt, for which the action was brought, was contracted in a fiduciary capacity. The Court of Common Pleas so held-overruled the motion, and gave judgment for the defendant in error.

Lane, Hill & Bennet, for Plaintiff in error.

Is the finding of the Court, as to the issue on the plea of discharge in bankruptcy, (which finding appears only in the bill of exceptions,) sustained by the evidence? Did Bissell become indebted in a fiduciary capacity? We maintain that he did not. The evidence shows, that the $100 was paid to Bissell and Gardner in part payment of the note given to them by Couchaine and Navarre. This $100 is all that even constructively came to the hands of Bissell; the balance having been paid to Gardner, after the firm of Bissell and Gardner was dissolved.

It does not appear that Bissell and Gardner were to pay over the money within a specified time, or that they were to pay over the identical money received from Couchaine on his note; but they were to "apply that amount" on the note which they had signed as his sureties. The $100, undoubtedly, went into the cash drawer of Bissell and Gardner-was mixed up and used with their own funds; and, before the balance was paid by Couchaine, the firm of Bissell and Gardner had become embarrassed, and failed, "having no means or effects with which to take up said first mentioned note." Whatever remained, then,