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recalling the injustice of visiting blameworthy Applying these principles to the facts of and blameless deviation with the same penal- the pending case: We think it manifest that ties of absolute or insurance accountability.”

Woodward acted with a fairly commensurate The same writer, contending for a reason-discretion when he placed the money and able construction of the contract or under-checks of the bailors in the iron safe for taking of bailment, said that the same ought safe-keeping, and that by fair inference from not to be too literally construed against a all of the circumstances that action was in bailee who may have found himself obliged the interest of the bailors and consented to to act while away from the bailor, and forced by them. They, themselves, in similar cirto act on his own judgment; and that “the cumstances, had made like deposits in safes good sense of the contract should interpret in Jellico overnight, which fact was known favorably, where restrictive use was not

was not to Woodward at the time of the lodgment clearly specified.” Schouler, Bailments, $$

Schouler, Bailments, 88 here in question. Kirtland v. Montgomery, 1 140, 141; Weller v. Camp, 169 Ala. 275, 52 | Swan (31 Tenn.) 452, 458. South. 929, 28 L. R. A. (N. S.) 1106.

The Court of Civil Appeals was of the opinParticularly should this be true in cases of ion that there was no excuse for Woodward bailments for the accommodation of the bail- not having the bookkeeper of Hackney & Co. or. The law should not be so technical and get the money on Tuesday morning and depenalizing on the question of diversion or de- liver it to the bank. But this quarrels with viation as to discourage and check the doing the very ground of liability of the bailee asof acts of accommodation by one person for sumed by that court-that the mere act of another in the spirit of neighborly kind

parting with possession without authority ness.

to a third person for a consummation of the In a case involving a claim of wrongful delivery

delivery would constitute a conversion. delivery to another person by a mandatary Moreover, Woodward explains that the bookthat amounted to a conversion (Christian v. keeper was more than ordinarily busy with First Nat. Bank, 155 Fed. 705, 84 C. C. A. his own duties, it being near the close of the 53), it was said by Van Devanter, Cir. J.: month when he was engrossed with his work

"As is said by Schouler, in his work on Bail- as accountant. ments (3d Ed. $8 58, 63), 'the courts are indis- Much stress is laid upon the fact that the posed to extend by inference, the perils of an unprofitable trust, and every bailee without funds were allowed to remain in the safe reward ought to be given the least trouble con- until up into the second day, especially in sistent with his actual undertaking. This is view of the fact that Ridenour had informed in keeping with the rule that, when a contract is fairly open to two constructions, it is legit. Woodward that he was drawing checks upimate to adopt the one which equity would on the deposit thus to be built up. If the favor."

fund was not one converted by the act of the This modern tendency was exemplified in placing of it in the safe of another, this the holding of this court in the case of ci- later circumstance would seem to be one only calla v. Rossi, 10 Heisk. (57 Tenn.) 67.

In to be looked to in ascertaining the degree that case money was the subject-matter of of care taken by the bailee. Did he hold bailment for accommodation, the contract the funds so long as to reach to gross negof which was evidenced by a written and ligence on his part? signed memorandum as follows:

It seems to us that in fairness the bailors "Received from Giovanni Rossi the sum of must be deemed to have known that Woodfive hundred and fifty dollars for safe keeps un- ward's first duty, on the day succeeding the til he call for it."

deposit in the safe, was to his own employers, The bailee, Cicalla, instead of keeping the and that his service for their accommodation money in his immediate possession, depos- must have been accepted with the tacit united it in his own name in a bank in the derstanding that Woodward's time was not city of Memphis that he considered safe but his own. Was it reasonable for them to dewhich later failed. The court, on the ques mand or expect that Woodward should give tion of a conversion on the part of the bailee over carrying out his employers' schedule, by reason of his making such a deposit, mapped out for him for Tuesday, in order said:

that the deposit should reach the bank be

fore Wednesday? We think not. Clear it. “The material point of controversy, and the one on which the case should turn, is whether is that a case of gross negligence is not or not the defendant in depositing the money made out. in bank in his own name acted in accordance with the consent of the plaintiff, either expressly

The decree of the Court of Civil Appeals. given or fairly to be implied from the circum- is reversed; decree here dismissing the bill stances and conversation had at the time.” of complaint at complainants' cost.

Tenn.)

LUNSFORD V. JOHNSTON

151

ent of the workhouse, and also a member of LUNSFORD V. JOHNSTON et al. the Knox county road commission. These (Supreme Court of Tennessee. Oct. 9, 1915.) road commissioners consisted of three memPRISONS Om 10–LIABILITY OF SUPERINTEND- bers, Andy Johnston being superintendent, as ENT-TORTS OF ASSISTANT.

stated. The act of the Legislature creating The superintendent of a county workhouse, the office of these commissioners, being chapunder Priv. Acts 1913, c. 264, creating the office of road commissioners, and providing that ter 264, Private Acts of 1913, provided that one of them should be superintendent of the one of the commissioners should be known workhouse and employ its guards with the ap- as the superintendent of the county workproval of his associates, was acting

in an offi- house, and that the guards for such workcial or governmental capacity in employing a guard, and, where he was not present when the house should be employed by said superinguard, whom he had told not to shoot any pris- tendent, with the advice and approval of his oner, 'shot and wounded a prisoner, attempting associates. to escape, he was not liable in damages. [Ed. Note. For other cases, see Prisons, Cent.

The proof shows that Johnston was not Dig. § 12; Dec. Dig. Om 10.)

present when the shooting was done, and

that he knew nothing about it until afterCertiorari to Court of Civil Appeals. ward.

Suit by James A. Lunsford, as next friend The defendant Sam Hall was employed by of M. E. Lunsford, a minor, against Andy the road commission, or rather by the deJohnston, Sam Hall, and others. From a fendant Andy Johnston, with the advice and judgment of the Court of Civil Appeals, af- approval of his associates, pursuant to said firming a judgment against defendant Hall, act. These guards are paid for their services and dismissing as to defendant Johnston and by the county, and are subject to the orders his surety, plaintiff brings certiorari. Af- of the superintendent of the workhouse. firmed.

Hall, therefore, was not a servant of the de Charles M. Roberts and W. B. Ford, both fendant Johnston at the time he did the of Knoxville, for plaintiff. Maynard & Lee shooting. Johnston was not acting in his inand Johnson & Cox, all of Knoxville, for de- dividual capacity in selecting Hall as a fendants Andy Johnston and others.

guard, but in an official capacity and as an

agent of the county in obedience to his statuFANCHER, J. This suit was brought by tory duty, and he was therefore performing James A. Lunsford, as next friend for M. E. a governmental duty. A public officer is not Lunsford, a minor, against Andy Johnston, responsible for the wrongful act of a suborsuperintendent of the workhouse for Knox dinate appointed by him under proper legal county, Tenn., Sam Hall, a guard, and oth- authority, unless he directed such wrongful ers, to recover damages for personal injuries act to be done, or is guilty of negligence in inflicted upon M. E. Lunsford, a prisoner at respect of same, which directly and proxithe workhouse, caused by the said Sam Hall mately contributed to the injury. Sherman shooting him while attempting to make his & Redfield on Neg. (6th Ed.) vol. 2, 8 319; Caescape. Judgment was rendered against Sam sey v. Scott, 82 Ark, 362, 101 S. W. 1152, 118 Hall, but the suit was dismissed as to Andy Am. St. Rep. 80, 12 Ann. Cas. 184; Robertson Johnston and the surety company on his v. Sichel, 127 U. S. 507, 8 Sup. Ct. 1286, 32 L. bond. The case was determined by the Court Ed. 203; McKanna v. Kimball et al., 145 Mass. of Civil Appeals upon an appeal to that court, 555, 14 N. E. 789; Sawyer v. Corse, 17 Grat. where the judgment of the lower court was (Va.) 230, 94 Am. Dec. 445; Walsh v. Trusaffirmed

tees N. Y. & Brooklyn Bridge, 96 N. Y. 427; The case is before this court upon certi- Bowden v. Derby, 97 Me. 536, 55 Atl. 417, 63 orari. The only error assigned is, in sub- L. R. A. 223, 94 Am. St. Rep. 516. stance, that there is no evidence to support Many other cases and authorities might be the judgment of the court.

cited. The position of the plaintiff is that Andy We think clearly under the well-recognized Johnston, as superintendent of the work- authorities on the subject that a public ofhouse, was not performing a governmental | ficer is not liable for the acts or omissions duty in the employment of Sam Hall as a of his subordinates employed by him or workguard, and that the relation of master and ing under his direction, unless they are actservant existed between them, and that there- ing in his private service, but these subordifore Johnston and his official bondsmen are nates themselves are considered as servants liable in damages to M. E. Lunsford, because of the government. We do not mean to hold the law knows only the superior officer in that there would be no personal liability in such cases.

cases of negligence or want of reasonable The proof shows that M. E. Lunsford was care in the selection of subordinates, but serving a workhouse sentence for a misde- that question does not arise, inasmuch as no meanor, and that he was shot by one Sam facts are shown proving a dereliction upon Hall, a guard at the Knox county workhouse, the part of Johnston in this respect. The on June 19, 1914, while attempting to make defendant Hall was acting without any auhis escape. Andy Johnston was superintend-Ithority to do this act, but on the contrary in violation of instructions. He had been in-17. VENDOR AND PURCHASER 341 - DEFIstructed by his superiors not to shoot any

CIENCY-ACTIONS-EVIDENCE.

In a suit to recover for a deficiency in a prisoner.

parcel of land, parol evidence, showing the The rule upon which sheriffs are held to terms of the contract as to the price and numbe liable for the acts of their deputies is ber of acres, must be clear and certain; those based upon the fact that the deputy is acting matters not being stated in the deed. in a personal capacity as the agent of his purchaser, Cent. Dig. 88 1008-1017; Dec. Dig.

[Ed. Note.-For other cases, see Vendor and principal, and the act of the deputy is the act on 341.] of the principal. In such case it is more 8. CONSTITUTIONAL LAW C83-IMPRISONnearly a personal employment by the sheriff MENT FOR DEBT-WRIT OF NE EXEAT. than the selection of a public official. The

There was a deficiency in a parcel of land, relation of principal and agent can, in no moved from the state and returned to collect

which was sold by the acre. The vendor resense, be found in the present case.

notes for the purchase price. These were on Affirmed,

his person. Shannon's Code, $ 6246, authorizes the issuance of a writ of ne exeat. Held, that in such case, as the vendor might remove and

negotiate the notes, thus depriving the purchasCAUGHRON et al. v. STINESPRING

er of his remedies, the writ of ne exeat would

issue; the issuance in such case not being et ux.

equivalent to an imprisonment for debt prohib(Supreme Court of Tennessee. Oct. 13, 1915.) ited by Const. art. 1, § 18.

[Ed. Note.-For other cases, see Constitution1. VENDOR AND PURCHASER 350_ACTIONS al Law, Cent. Dig, 88 150–15112; Dec. Dig. FOR DEFICIENCY-EVIDENCE. Evidence held to show that complainants 9. NE EXEAT m3

Om 83.]

ISSUANCE OF WRIT purchased a farm by the acre and not in gross, and so could recover for deficiency in acreage.

RIGHT TO. [Ed. Note.-For_other cases, see Vendor and demands uncertain or contingent, and either the

The writ of ne exeat will not issue for Purchaser, Cent. Dig. 98 1043-1046; Dec. Dig. demand or its enforcement must be of an equi350.] ]

table nature. 2. BROKERS Om94LIABILITY OF PRINCIPAL [Ed. Note. For other cases, see Ne Exeat, FOR BROKER'S STATEMENTS.

Cent. Dig. 88 3–6; Dec. Dig. Om3.] A landowner who makes a sale through a 10. NE EXEAT Omw 6–WRIT-PLEADING. duly authorized broker is bound by the broker's

A bill, praying the issuance of a writ of ne statements as to the quantity of the land.

exeat, must by positive allegations or by facts [Ed. Note,-For other cases, see Brokers, showing the intention, set forth defendants' inCent. Dig. 8 136; Dec. Dig. Om 94.]

tended departure from the state and the proba3. VENDOR AND PURCHASER 334 - DEFI- bility of loss of rights, CIENCY-LIABILITY FOR.

[Ed. Note. For other cases, see Ne Exeat, Though purchasers of land visited the Cent. Dig. $ 8; Dec. Dig. 6.] property itself and looked over the boundaries, the fact that they did not discover a deficiency

Appeal from Chancery Court, McMinn of 57 acres will not excuse the vendors, as the County; V. C. Allen, Chancellor. purchaser could hardly be expected to discover Suit by William Caughron and others a shortage in a tract of 600 acres.

[Ed. Note. For other cases, see Vendor and against J. B. Stinespring and wife. From a Purchaser, Cent. Dig. $8 959-980; Dec. Dig. decree for defendants, complainants appeal. Om 334.]

Reversed and rendered. 4. VENDOR AND PURCHASER 334 DEFI- Jones & Davis, of Athens, for appellants. CIENCIES-RECOVERY.

Where a sale is in gross, no compensation N. Q. Allen, of Athens, for appellees. will be granted for a deficiency, unless the deficiency is so great as to justify a conclusion FANCHER, J. This suit was brought to of fraud or mistake equivalent to fraud, but if recover damages for a deficiency in acreage the sale is by the acre, the purchaser may re-in a tract of land conveyed by the defendcover for a deficiency at the agreed price per acre.

ants to complainants, upon the ground that [Ed. Note.-For other cases, see Vendor and the land was sold by the acre at an agreed Purchaser, Cent. Dig. $$ 959–980; Dec. Dig. price per acre. The original bill undertook On 334.]

a recovery, notwithstanding the fact that 5. VENDOR AND PURCHASER 334 – DEFI- the deed of conveyance did not recite the sale CIENCY-STATEMENTS IN DEED.

To recover for misrepresentation as to the by the acre, upon the ground that the origiquantity of land conveyed, it is not necessary nal contract of sale entered into between the that the acreage be stated in a deed, but this parties contemplated a sale by the acre, and may be shown by extrinsic evidence.

that it is competent to look to the original [Ed. Note.-For other cases, see Vendor and contract; the deed being a mere evidence Purchaser, Cent. Dig. 88 959-980; Dec. Dig. 334.]

of the original agreement.

An amendment to the bill was filed later, 6. EVIDENCE O419-PAROL EVIDENCE-CONTRACT OF SALE-DEFICIENCY-RECOVERY.

seeking to reform the deed upon the ground In a suit to recover for a deficiency in a that by mistake or fraud the instrument did parcel of land, the price per acre may be shown not set forth the real contract of the purby parol, though not stated in the deed, the real contract between the parties governing.

chase. The deed contained general war[Ed. Note.-For other cases, see Evidence, ranties, covenants of seisin, etc. It contains Cent. Dig. $$ 1912-1928; Dec. Dig. 419.] a description of the land by metes and Tenn.)

CAUGHRON V. STINESPRING

153

was

bounds, except that on some of the lines the and many of them were short of the distance distance is not given; the calls being for called for. He was asked as to each call lands of other owners or other objects. and each line given in the deed, and it was

[1] The property in question, belonged to found that practically all of the calls were Mrs. Lou Stinespring, and the deed was ex- incorrectly given in the instrument. He ecuted by her and her husband, J. B. Stine- testified that the lines were well established spring, to the complainants. The grantors

The grantors and the corners located. were, at the time, living upon the land in [2, 3] From this testimony we are satisfied, question, located in McMinn county, Tenn., and find as a fact, that the complainants purand complainants were residents of Blount chased the Stinespring farm from the defendcounty, Tenn. Most of the negotiations in ants through their regularly authorized agent regard to the sale were carried on between at $50 per acre, and paid therefor in money the complainants and one C. F. Keith, Jr., and notes the sum of $30,000, upon the basis who was the agent of defendants, they hav- and the distinct understanding that the farm ing jointly authorized Keith to represent consisted of 600 acres;

consisted of 600 acres; that complainants them in the sale of their farm and appointed relied upon this representation of acreage, and him by written contract as their agent. In that they would not have given $30,000 for this contract the land was described as con- the farm if they had not believed that it taining 600 acres, of which 400 acres was contained 600 acres. The defendants were cleared and 200 acres in timber.

bound by the statement of their agent as Defendant Stinespring denies that he had to this representation of acreage. Comany understanding that the land was sold plainants looked over the land prior to their by the acre, but the agent Keith, and both purchase. While it is evident as a practical of the complainants, grantees in the deed, proposition that they could see the body of testified positively that the understanding and they were to receive and form an estiwas that complainants were buying 600 mate of its size and value, yet it is also apacres of land at $50 per acre.

parent, that although the deficiency in acreThe deed of conveyance does not set forth age, being 57.7 acres,

sufficient in the amount of the purchase price, it appear- amount to be material in the contract, yet ing that Stinespring did not want to put on without an actual survey a purchaser could the face of the deed the consideration to ordinarily be deceived as to the number of be paid, and the purchasers probably did acres in so large a tract of land. not want the deed to show the real considera- After the sale of the land the defendants tion on account of a desire to keep the taxes moved to the state of Florida. At the time as low as possible.

the bill in this case was filed defendant J. B. The contract of agency was signed by Stinespring was in McMinn county temporaboth Mrs. Stinespring and her husband, ap- rily. One of the notes for purchase money pointing Chas. F. Keith, Jr., their exclusive had fallen due, and it was alleged in the bill agent to procure a purchaser or sell the that a certified check had been given to deland. Keith testified that Stinespring told fendant Stinespring in part payment of this him that the farm contained over 600 acres indebtedness, which payment had been made and that before the deed was made to com

before they ascertained the shortage in plainants, he, heith, told Stinespring the acreage; that J. B. Stinespring had also terms upon which the land was sold; that taken the notes from the bank at Athens, and it had been sold for $30,000, based on 600 that he then had in his possession this note, acres at $50 per acre. He testified explicitly

He testified explicitly upon which was then due $2,188.88; that the that he told the purchasers there were 600 note is payable to J. B. Stinespring or order, acres in the farm listed to him by Stine- and there is nothing on the face thereof to spring. Complainants Caughron and Goins put any purchaser of the same on notice as testified that they relied upon the statement to any equity or right that the complainants that they were to get 600 acres of land, and might have therein in the way of a set-off or that they would not have bought the farm counterclaim for the shortage in acreage. if they had known that it contained less They further averred that said defendant than 600 acres. Defendant Stinespring tes had no other property in Tennessee, and that tified that after the sale had been made, he was fixing forthwith to leave McMinn Keith told him that he had sold the farm county and go to his home in Florida and for $30,000, and the terms upon which the would not return, and was seeking to evade sale was made. He and his wife thereupon accounting to complainants for the shortage executed the deed.

in said acreage, and unless restrained by The county surveyor of McMinn county proper fiat would do so, and thereby defeat was employed by the complainants after the effort to obtain redress or relief against their purchase of the farm to make a survey the defendants. and calculation of acreage, which was done, In addition to the prayer for ordinary proand it was determined that the farm contain-cess, complainants also prayed for an injunced only 542.2 acres. The surveyor stated that tion to restrain J. B. Stinespring from disit was impossible to follow the calls of the posing of said note or said cashier's check; said note and cashier's check to the court, deed does not disclose the real contract as to be held subject to the orders of the court, to the number of acres nor the price per acre, and that attachment issue, attaching the yet under the authorities it is clear this may note and cashier's check. There was also a be shown by extrinsic testimony. prayer that a writ of ne exeat republica issue matter of this kind must be presented by to stay defendant J. B. Stinespring from de- parol testimony alone, a safe rule to lay parting from or leaving the state without the down would be that the proof should be clear express permission of the court, and they and unmistakable, because matters arising sought to have the said note credited with outside the written instrument should be the sum of $2,890 for the shortage in acreage. clearly proven.

Fiat was obtained and writs issued for the However, in this case we find no difficulty injunction, attachment and writ of ne exeat in coming to the conclusion that there was prayed for, and all said writs were executed a clear understanding between the agent and on the defendant Stinespring, except the writ the purchasers that the price was to be $50 of attachment; the return of this writ being per acre, and that the body of land containsearch made and the property described ed 600 acres. The grantors in their contract therein not found. Later, by agreement and with the agent had represented the farm entry of order in the cause upon the applica- to contain 600 acres, and in addition one of tion of said Stinespring, he executed a bond the grantors had stated to the agent that he in the sum of $5,780, payable to the state for thought it would run out more than that. the use of complainants, conditioned that It was not apparent from the face of the he should appear in person before the chan- deed that there was less than 600 acres of cery court at Athens, Tenn., and should abide the land, because some of the calls did not by and perform the judgment of the court state the distance from one point to another in this cause.

in the lines. Moreover, it was found by the Complainants answered the bill, denying survey that there was a considerable deficienthe material allegations therein. The chan-cy in the calls for distance where the deed cellor upon final hearing dismissed the bill, recited such distance from corner to corner. and upon a motion for that purpose quashed We think therefore the chancellor was in and dismissed the writ of ne exeat. A ref- error in dismissing the bill. erence was made to the master to report on [8] Under the record the writ of ne exeat the damages sustained by defendant for the was properly issued. The defendant was a wrongful issuance and execution of the writ nonresident of the state and was only within of ne exeat. Complainants appealed upon the jurisdiction of the court temporarily. He the whole decree.

had no property in the state except the items [4-7] Where the sale is in gross the rule of personal property which were on his peris that no compensation will be granted for son. He was about to remove with this pera deficiency, unless such deficiency is so sonal property beyond the jurisdiction of great as to justify a conclusion of fraud, the court. It was very essential to have the or mistake equivalent to fraud. If a sale is defendant in the custody of the court so that by the acre and there is a deficiency, then its orders and decrees might be made to the purchaser can recover for such deficiency operate upon him. The injunction in such at the agreed price per acre. For where the case would have been insufficient. price is by the acre, if there is a misrep- The writ of ne exeat is not frequently isresentation made by the vendor and relied sued, because the occasion for its demand on by the vendee as to acreage, producing seldom arises. Nevertheless, it is directly a loss, such misrepresentation, whether in- recognized in our statute (Shannon's Code, tended so or not, has all the essential ele- $ 6246) providing that injunctions, attachments of legal fraud or mistake. It is not ments, writs of ne exeat, and other exabsolutely essential in order to recover for traordinary process shall be granted by the a misrepresentation as to the quantity of chancellor, circuit judges, and judges of crimland conveyed that the acreage should be inal and special courts. It is within the stated in the deed, but this may be shown power and jurisdiction of the chancery court by extrinsic evidence. Likewise, the amount in a proper case to grant the writ. Gibson's of the consideration may be shown by parol Suits in Chancery, § 864; Smith v. Koontz, testimony. The deed is only the execution 4 Hayw. 189. of the contract, and the real contract and In Smith v. Koontz, the writ was issued in understanding between the parties in this apprehension, based upon the character of respect will govern on the question. Miller the defendant and information that there v. Bentley, 5 Sneed, 671; Seward v. Mitchell, was danger of the removal of the negro slav1 Cold. 89; Barnes v. Gregory, 1 Head, 230; es who were the subject of the controversy. Horn v. Denton, 2 Sneed, 125; Deakins v. The issuance of the writ in this case is Alley, 9 Lea, 494; Rich v. Scales, 116 Tenn. not equivalent to imprisonment for debt, 63. 91 S. W. 50.

which is prohibited by our Constitution (artiThe present case is one where there is a decle 1, § 18). In any case where it would ficiency in acreage material in amount and amount to such imprisonment it would neces

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