# Ruffner, Donnally & Co. v. Hewitt, Kercheval & Co. > West Virginia Supreme Court · July 15, 1874 · 7 W. Va. 585 URL: https://www.frixlaw.com/law-library/cases/6591454 ## Case - **Full name:** Ruffner, Donnally & Co. v. Hewitt, Kercheval & Co. - **Court:** West Virginia Supreme Court - **Decided:** July 15, 1874 - **Citations:** 7 W. Va. 585; 1874 W. Va. LEXIS 37 - **Precedential status:** Published - **Opinion:** Opinion of the court by Haymond - **Judges:** Haymond, Hoffman, Moore, Pauli - **Cited by:** 37 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6591454 ## Opinion text HaYMOND, PRESIDENT : This is a suit in equity in the nature of a foreign attachment. The bill in the case was filed on the 1st Monday in April, 1859. The several firms of Hewitt, Roe & Co., Hewitt, Kercheval & Co., John J. Roe, & Co., and Humphrey, Tutt & Terry, are the principal defendants, against whom decrees are sought, by the plaintiffs, though there are other defendants, who the bill alleges have an interest; but the bill does not define or specify that interest; and there, are still other-defects. I intended to preface this opinion with a full statement of the case as presented by the bill and answers,, but found that to do so is not essentially necessary, and would make the opinion unnecessarily lengthy and cumbersome.. From the case as presented by the record it appears; that the plaintiffs and a few others, who are dead, but whose personal representatives are parties to this suit,, in the latter part of February, 1851, entered into a partnership under the firm name and style of Ruffner, Don-nally & Co., in the county of Kanawha, then in the-State of Virginia, but now in the State of West Virginia, for the purpose of buying salt, manufactured and to be manufactured, in said county, and vending the-same in such markets as might be deemed expedient, in the western and southern states, and to open and keep a dry goods and grocery store in the “Kanawha Salines^ in said county — the partnership to expire on the 1st day of January, 1856. In May 1851, the firm of Hewitt, *588 Roe & Co. commission merchants of St. Loiris, Missouri, were appointed agents, or rather factors, of the plaintiffs, at that place, to sell at that place, and forward country agents for sale the salt of plaintiffs, delivered to them. This appointment was made through Lewis Ruffner, one of the plaintiffs, who, at the time, was an active partner, and corresponded with Hewitt, Roe & Co., from Louisville, Kentucky, where he seems at that time to have been acting for the plaintiffs in carrying on their business, or part thereof. The firm of Hewitt, Roe & Co., was composed of James Hewitt, John J. Roe and Robert M. V. Kercheval, and no others. The defendants Humphrey, Tutt & Terry, Robert M. V. Kercheval, James Hewitt and John J. Roe & Co., filed their answers to plaintiffs bill. The answers are lengthy and specific in character, and deny any indebtedness or liability to plaintiffs, by any or either of them, by reason of the matters alleged in the bill, and in fact it is claimed by Kercheval in his answer that the firm of Ruffner, Donnally & Co., are justly indebted to Hewitt, Kercheval & Co., in a sum and for causes hereinafter named; and Humphrey, Tutt & Terry that Ruffner, Don-nally & Co., are indebted to them on account of their agency as factors of Ruffner, Donnally & Co., in a large sum of money, tor balance of money advanced and paid by them to and for the use of Ruffner, Donnally & Co. No other defendants appear to have answered the bill. Humphrey, Tutt & Terry and Hewitt, Kercheval & Co., filed demurrers to the bill, but the demurrers were overruled by the circuit court of Kanawha county, on the 25th day of June, 1859. It does not appear by the record that replications of any description were filed by plaintiffs to the answers of the defendants, but it does appear that both plaintiffs and the defendants, who answered, took and filed depositions in the suit, as though a general replication had been filed to each of the answers, and the court seems *589 to have decided the suit upon its merits, as though general replications to the answers were filed. And in fact the counsel in the court below seem to have considered an argued the suit before the circuit court as though replications to the answers had been filed. Under these circumstances, I deem it proper that the suit should be considered and determined here as though the record showed that general replications were filed to the answers. At the circuit court held for said county on the 18th day of August, 1859, that court heard the cause on the bill and exhibits, the answers of James Hewitt, R. M. V. Kercheval, Humphrey, Tutt & Terry, and the affidavit of Charles Hedrick, and the proceedings theretofore had in the cause, and without undertaking to settle any principles in the cause, decreed that an account be taken before master commissioner Alexander T. Laid-ley, to ascertain the state of accounts between Ruffner, Donnally & Co., Hewitt, Roe & Co., Hewitt, Kercheval & Co., J. J. Roe &. Co., (properly John J. Roe & Co.,) and Humphrey, Tutt & Terry, respectively, arising out of the matter set forth in the bill, and other pleadings, and the proofs that should be offered in the cause, and any other matters which the commissioner should think pertinent, and the parties, or any or either of them, should request, and report his proceedings in the premises to the court. Afterwards commissioner Laidley made his report to the court to which numerous exceptions were filed by plaintiffs and Hewitt, Roe & Co., Hewitt, Kercheval & Co., John J. Roe & Co. and Humphrey, Tutt & Terry; and on the 6th of July, 1869, the suit was heard by the court upon the papers theretofore read, and proceedings had therein, the depositions of witnesses, and other papers filed in the suit, the reports and accounts of commissioner Laidley and the papers and other evidence filed therewith, the exception of Hewitt, Roe & Co., Hewitt, *590 Kercheval & Co., John J. Roe & Co. and Humphrey, Tutt & Terry, and also the exceptions of plaintiffs thereto, court sustained the exceptions to the report of Laidley filed by Hewitt, Roe & Co., Hewitt, Kercheval & Co. and John J. Roe & Co. And the Commissioner having referred the matter of the record of Houseman, Smith & Co., against Hewitt, Kercheval & Co. (filed as evidence before him) to the court for its judgment, the court was of opinion that the amount of the recovery shown by the said record against Hewitt, Kercheval & Co. is a proper charge against the plaintiffs and decreed that the plaintiffs pay to the defendant, Robert M. V. Kercheval, surviving partner of Hewitt, Kercheval & Co., $1,348.21, being the principal and interest of the recovery aforesaid due, that day, and also the further sum of $161.50, being principal and interest of the amount paid by them for defending the same; also the costs of Hewitt, Kercheval & Co. incurred by them about their defence in this suit and that plaintiffs bill be dismissed as to them; and also that the suit be dismissed as to the defendants Hewitt, Roe & Co. and the defendants John J. Roe & Co. and that the defendant Robert M. V. Kercheval, surviving partner of Hewitt, Roe & Co. and John J. Roe & Henry J. Moore constituting the firm of John J. Roe & Co., recover against the plaintiffs their costs by them, severally, in their defence in the suit expended. And the court overruled the exceptions of the plaintiffs so far as they apply to the controversy with the defendants, Humphrey, Tutt & Terry, but sustained the exceptions of Humphrey, Tutt & Terry, to the said report. And the circuit -court not being advised what decree should be made as between the plaintiffs and defendants Humphrey, Tutt & Terry, ordered that the cause, as between the plaintiffs and Humphrey, Tutt & Terry, be referred to Win. H. Hogeman, a special commissioner, and required him to. state and report the accounts as between plaintiffs and Humphrey, Tutt & Terry, upon this basis, viz: “That he allow the plain *591 tiffs the proceeds of the sales of the salt transferred to Humphrey, Tutt & Terry by John J. Roe & Co., for and on account of plaintiffs and the proceeds of all lections made by them of the country agents having of plaintiffs in their hands, and also the proceeds of collections on bills receivable in the hands of Humphrey, Tutt & Terry belonging to plaintiffs and transferred to Humphrey, Tutt. & Terry, by said John J. Roe & Co., for and on account of plaintiffs and that he allow Humphrey, Tutt & Terry the amount specified in the bills drawn by plaintiffs, by their agent John B. Smith, onJHumphrey, Tutt & Terry, and accepted and paid by them for the accomodation of plaintiffs; and also all just expenses, charges and commissions for the sale, and relating to the disposition and sale of said salt, and the collection of said bills receivable, and other claims; and that he report the same, and any other or further matter in the premises that any or either of the parties may require, or said commissioner may himself deem pertinent and proper, to a future term of the court. From this decree, Ruffner, Donnally & Co. appealed and perfected their appeal on the 2d day of July, 1870. No question has been made before this Court as to the correctness of the action of the of the circuit court in overruling the demurrers filed to the bill. None of the defendants in their arguments, made or filed in this Court, question that action; and I deem it unnecessary under the circumstances and view I take of the case, to consider further the action of the circuit court in relation to the demurrer. I will proceed at once to the consideration of the question arising upon the decree of the 6th of July, 1869. The firm of Hewitt, Roe & Co. was dissolved about the 1st day of August, 1854, by John J. Roe, one of the partners, withdrawing from the partnership, of which fact Ruffner, Donnally & Co. then, or about that time, were duly and fully notified. On the dissolution of the firm and partnership of Hewitt, Roe & Co., the firm of *592 Hewitt, Kercheval & Co. was formed, composed of James Hewitt and Robert M. V. Kercheval, two of the former firm of Hewitt, Roe & Co. No other person or Copersons were connected with the firm of Hewitt, Kercheval & Co. At the time of the dissolution of the firm of Hewitt, Roe & Co., and at the time Ruffner, Donnally & Co., had notice thereof, they were also notified ofthe formation of the new firm of Hewitt, Kercheval & Co. as commission merchants at St. Louis. The firm of John J. Roe & Co. was composed of John J. Roe and Henry J. Moore, and was formed the 1st of January, 1856; and they were also commission merchants in St. Louis. The firm of Humphrey, Tutt & Terry were commission merchants in St. Louis the first of the year 1857, and perhaps before; but it is not necessary to inquire when this firm commenced business. It was composed of George D. Humphrey, Thomas E. Tutt, Lucius H. Terry and Moses D. Broadwell, and none other; and they continued business at St. Louis until, perhaps, the institution of this suit, and afterwards. The firm of Hewitt, Roe & Co. continued to be the agents or factors of the plaintiffs until its dissolution the on 1st of August, 1854, after which time the firm of Hewitt, Kercheval & Co. became, and continued to be, the agents or the factors of plaintiffs, for the sale"of salt and forwarding of salt to country agents until the 2 2d day of December, 1856, at which time, by an arrangement made by Lewis Ruffner, one of the plaintiffs and sanctioned by John B. Smith, the general agent of Ruffner, Donnally & Co., whose office and place of business was at Louisville Kentucky. Hewitt, Kercheval & Co. ceased to be agents'or factors of Ruffner, Donnally & Co., and the salt they then had on hand belongingto Ruff-ner, Donnally & Co., and the salt that Hewitt, Kercheval & Co. had forwarded to country agents, not wholly accounted for, and belonging to Ruffner, Donnally & Co., and all bills and other evidences of debt belonging to Ruffner, Donnally & Co. in the hands of Hewitt, Kercheval & Co., and the salt placed in the hands of coun *593 try agents for sale for Ruffner, Donnally & Co. by Hewitt, Roe & Co., before their dissolution, unsold and unaccounted for, were turned over to and delivered Hewitt, Kercheval & Co. to the firm of John J. Roe Co. for sale, collection, settlement, &c., as the agents and factors of Ruffner, Donnally & Co.; and when this was done, the firm of Hewitt, Kercheval & Co dissolved John J. Roe & Co. acted as the agents and factors of Ruffner, Donnally & Co., in the premises, under the arrangement aforesaid, until a short time after the middle of January, 1857, Avhich ivas about one month, when John J. Roe & Co., by an arrangement made by said Lewis Ruffner, and sanctioned by said John B. Smith, agent as aforesaid, turned over and delivered to Humphrey, Tutt & Terry, as agents and factors of Ruffner, Donnally & Co., all the salt of plaintiffs which they then had on hand, and also all the salt of Ruffner, Donnally & Co., placed in the hands of country agents by Hewitt, Ker-cheval & Co., then unsold, and all the bills, notes or ■other evidences of debt then in their hands belonging to plaintiffs, except such as related to the salt forwarded to country agents by Hewitt, Roe & Co., and which had been collected and accounted for, and Humphrey, Tutt & Terry received the same for sale, collection, &c. Hewitt, Roe & Co., up to the 1st of August, 1854, rendered to plaintiffs, regularly and generally, monthly reports of the amount of barrels of salt received by them, the amount of barrels of salt sold by them, the amount forwarded to country agents, the amount of their charges for commissions on sales and for forwarding, and also rendered, regularly, to Ruffner, Donnally & Co., accounts current between them and Ruffner, Donnally & Co., showing, among other things, their charges and expenditures for Ruffner, Donnally & Co., for storage, shed-cooperage, drayage, &c., in tact, for every charge against them which "is rejected by the commissioner in his report. At the time of the dissolution of the firm of Hewitt,, *594 Roe & Co., as shown by their account current in the "record, rendered July 31,1854, there was in their hands ’in St. Louis, four thousand eight hundred and sixty- , three barrels of salt, which was turned over by them to Hewitt, Kercheval & Co., with which Hewitt, Kercheval & Co. charged themselves and accounted to Ruffner, Donnally & Co., in their report of sales for August, 1854. On the 16th of January, 1855, Hewitt, Roe & Co., rendered to Ruffner, Donnally & Co., another account current, showing that, at that date, there was a balance due' Ruffner, Donnally & Co., on moneys received by them of Donnaiiy & Co., with |40.40 for lumber for dun-nage and for $300, paid Lindell for quarter of rent ending February, 1855. They also report twenty-four bar-used for refilling the amount sold and their commission on the 12th of April, 1855, they forwarded their return of sales by letter for March charging twenty cents per barrel on one hundred and forty-four barrels sold and twenty-five cents on five hundred barrels sold in yard. They also stated in each of these reports the; amount of salt received in each month. Ruffner, Don-naiiy & Co’s., letter, per said J. B. Smith, dated 17th April acknowledged receipt of Hewitt, Kercheval & Co’s., letter dated 12th and no objection or exceptions are made to any of the charges' — -They also made a similar return for April, dated 30th of April, and no objections made; and also a similar return for May and no objections. The accounts for April and May seem to have been forwarded on the 8th of June, and their receipt is acknowledged 12th of June. The account for April charges for cooperage for salt received on “Winslow,” “Golden Gate,” “Thos. Swann,” and “Baltimore,” altogether amounting to $83.95 and $6, drayage. The account for May contains charge for cooperage on salt per “Mediator” “Susquehanna” “Seventy-Six” “Return” “Stella Blanch”— amounting together to $128.72. Ruffner, Donnaiiy & Go., in acknowledging receipt make some complaint in this letter as to some of the cooperage being high especially of that on the “Swann’s” shipment, but there is no denial of the right of Hewitt, Kercheval & Co., to charge for necessary cooperage; but in fact the contrary. The “Stella Blanch” and “Return” belonged to Ruffner, Donnaiiy & Co. For the month of June Hewitt, Kerche-val & Co., returned an account of sales and account of expenses which were forwarded the 18th of July. In the expense account there are charges for rent, for wood for dunnage; for cooperage on salt delivered by “Stella Blanch” amounting to $44.91 and for rolling salt from river $39.25. The receipt of these accounts with account *617 current to 1st July is acknowledged by Buffner, Don-nally & Co., by letter dated 18tli of July, in which no objection is made to any charge. On the contrary letter acknowledging receipt says: “We have all these and previous accounts on our books, so as to correspond with yours.” Accounts of sales were also rendered for July, August and September with commissions at the rate of twenty-five cents per barrel on sales, and declared by Nuffner, Donnally & Co., in the letters acknowledging receipt to be right. For the month of October, 1855, Hewitt, Kercheval & Co., on the 6th November, forwarded an account of sales with commission, twenty-five cents, and also an expense account in which drayage is charged on filteen hundred barrels of salt to boat $105.00 and twenty-five cents commission per barrel for forwarding, amounting to $175. This account of sales is acknowledged to be received and to be correct and entered. This fifteen hundred barrels wTas evidently forwarded from yard and not levee. On the 2nd of April, 1856, Hewitt, Kercheval & Co., rendered an account current from 1st July, 1855 to 1st April, 1856, in which there are various charges for rent, commission &c., and the receipt of it is acknowledged by Buffner, Don-nally & Co., per John B. Smith, by letter, dated April 5, 1856, in which no objection is made for any overcharge of commission or drayage. Some inquiry is made about some other matters which were promptly explained by letter dated 9th April. Hewitt, Kercheval & Co., also returned an account current from 1st April^. 1856 to October, of which no complaint or objection appears to have been made. On the 4th November, 1856, Hewitt, Kercheval & Co., made return for October and in their letter to Buffner, Donnally &' Co., enclosing it they say : “We are having Messrs. Buffner, Donnally & Co’s., salt put in order; it is a bad job, and we trust in future that you will send your correspondents here better cooperage, and allow them to keep it under cover.” To *618 which J. B. Smith replies 7th November, 1856 acknowledging receipt of letter of 4th and says: “"We hope you :°-’and our Mr. Ruffin or will be able to fall on some plan to work off Ruffhcr, Donnally & Co’s., salt. Owing to its condition it will hardly keep if suffered to lay over another season — would prefer taking less price.” And then Hewitt, Kercheval & Co., rendered a final account current from 1st October, 1856 to 22d December, 1856, inclusive, before referred to. In the letter of Rnffner, Donnally & Co., acknowledging the receipt of final accounts, no objection, or exception is taken to any part or charge therein, except an explanation is asked concerning two items, to-wit: in relation to a charge for dray-age ou the salt in the yard turned over to Roe & Co., and the charge of -} per cent, on $10,000 to Bank of Missouri, $50.00. This letter was written by said John B. Smith, and among other things it says : “The cooperage bill is awful, but we expect you had a hard time of it.” On the 81st of December, 1856, Samuel C. Cochran, the clerk of Hewitt, Kercheval & Co., addressed a letter to Ruffner, Donnally & Co., explaining the two items in the account about which the enquiry was made, and I think the explanation reasonable and satisfactory. In his letter of explanation, Cochran, speaking for Hewitt, Kercheval & Co., says : “In relation to the charge for drayage and labor on six thousand seven hundred barrels of s.alt turned over to John J. Roe & Co., when making up your account, I suggested to Mr. Kercheval the idea ■of making the charge to John J. Roe & Co. He replied that it should be made to your account, and that John J. Roe & Co., in making up account of sales would charge commissions, twenty-five cents per barrel, less than the drayage. The charge §• per cent, on $10,000, allowed Bank of Missouri, was an exchange which they had to take of the Bank in order to get the bills drawn on you discounted at bank rates. They could have bought •exchange on New York, outside, at par, but had they sold these bills on you outside, it would have been at a *619 much greater discount than in Bank.” In the said letter of Ruffner, Donnally & Co., they do not claim, as I understand it, that Hewitt, Kercheval & Co., were entitled to receive the drayage, but they suggest that would not be proper for them to pay it, and then pay Hoe & Co., full commission of twenty-five cents for sales. I think it is clearly proven by Cochran, that the arrangement and understanding between the parties, at the time, of the transfer to John J. Roe & Co., was, that Roe & Co., were to charge twenty-five cents per barrel for the sale of that salt, less the drayage, and Roe & Co., in pursuance of that arrangement, did only charge Ruffner, Donnally & Co., seventeen cents per barrel on so much of that salt as they sold as may be seen by their report of the sale of forty barrels, which was all they sold before the agency was transferred from them to Humphrey, Tutt & Terry; and Cochran further proves, in same connection, as part of said arrangement and transfer, that John J. Roe & Co., were to charge no commissions for collections from country agents, while the agency remained in their hands. v It does not appear that any answer was sent to Cochran’s letter of explanation. But afterwards on the the 12th day of January, 1857, and after the letter of Cochran must have been received, the said John B. Smith gave or sent to said Ruffner, who was going or was sent to St. Louis to see John J. Roe & Co., among perhaps others, a letter of instructions.' This letter is directed to Lewis Ruffner, Esq., and the material part of it is in these words, viz: “J. J. Roe & Co. have to pay for Ruff-ner, Donnally & Co., as per Kercheval’s balance f23,750 maturing as follows : March 4, $5,000; do. March 8, $2,-500; do. March 11, $1,250; do. March 13, $2,500; do. March 18, $2,500; do. March 21, $2,500; do. March 22, $2,500 ; do. April 4, $2,500; do. April 8, $2,500; (aggregating) $23,750. * * We have drawn on J. J. Roe & Co. at 4 nr. d., in December, for $10,000. We have written them to send authority for 15,000 at 4 m. *620 d., for January. We will want for February 4 m. d., at “least $15,000, and $15,000 for December and February. •■If they mature before, in funds, we can easily, if neces-a sary, use letters of credit at 4 m. d. at their maturity, and send proceeds to J. J. Noe. & Co. in exchange for checks on St. Louis. We prefer negotiating here, as it can be done cheaper and on longer time. You will please make the arrangements above mentioned for the months of March and February, and if January authority has not been sent, send it at once. You will please have an understanding that we can get these amounts as wanted each month. You will please urge them to close off Nuffner, Donnally & Co.’s salt in the city in spring before new salt will go forward.”' Here is an express direction to pay Hewitt, Kercheval & Co.’s balance which was in acceptances at time amounting to $23,750, which was the whole of their balance as per their accounts returned, except $19.08, and that was paid by John J. Noe & Co., and the $23,750 was met and paid by Humphrey, Tutt & Terry, to whom the agency was transferred from John J. Noe & Co. by an arrangement made by said Nuffner, and sanctioned and acted upon by said Smith as the agent of Nuffner, Donnally & Co., and it was paid with the knowledge and by the direction of Smith, as well as Nuffner. Thus it will be seen that the account of Hewitt, Kercheval & Co. and Nuffner, Donnally & Co. as returned by Hewitt, Kercheval & Co., was fully settled and paid in accordance with the account as stated by Hewitt, Kercheval & Co. in their final accounts current returned to Nuffner, Donnally & Co., the balance in said account being $23,769.08. After this account had been stated and settled by payments and on the 30th of August, 1858, some seventeen months after the final account was returned and more than a year after the balance to Hewitt, Kercheval & Co., had been settled by payment, said John B. Smith wrote a letter to Nobert M. "V. Kercheval dated at Louisville, 30th August, 1858, in which he says : “Messrs. Hum *621 phrey, Tutt & Terry, make charges for commissions and cooperage; also drayage in some cases. Mr. Wilson, the acting agent of Ruffner, Donnally & Co., and Hale, of Ruffner, Hale & Co., as well as Mr. have written me frequently, and say write to you, that they expect next month, and early in the month, to make a settlement with Humphrey, Tutt & Terry, and wish me to say to you that they will expect you to pay whatever they may have to pay for winding up the business left by you. They further say, they have been informed that when you made up your mind to go to Liverpool that your instructions were to Mr. Martin to ship every barrel he could everywhere, as that would give you twenty cents in your pocket.” To this letter Kercheval replied at length, repudiating the claims and charges made in Smith’s said letter and claiming that Hewitt, Kercheval & Co., nor he, were in anywise responsible for any commissions or charges that Humphrey, Tutt & Terry may have charged; that Hewitt, Kercheval & Co., had nothing to do with the transfer by Ruffner, Donnally & Co., of the agency from John J. Roe & Co., to Humphrey, Tutt & Terry, and did not know of it at the time, or the terms on which it was done ; that that was a matter of arrangement between Ruffner, Donnally & Co., and Humphrey, Tutt & Terry in which Hewitt, Kercheval & Co., had no part or concern. He also complains that he (Smith) did not make the objection sooner when he knew the facts better than now. To this letter Smith wrote a short reply dated 4th September, 1858, in which he says Kercheval’s letter of the 2d inst. is at hand ; that he wrote Kercheval only as he was requested by the parties and will lay his reply before them, and when he hears from them will again let Kercheval hear from him. At this point further correspondence seems to have ceased on this subject and nothing further appears until this suit was brought. *622 I should here stale that it was part of the original “contract between Hewitt, Noe & Co., and Ruffner, Don-’■mally & Co., that Hewitt, Roe & Co., should accept for ;oRuffner, Donnally & Co., without charge and pay their bills when due, if in funds, without charge, but if Hewitt, Roe & Co. made advances they would make the additional entry. And this part of the contract appears to have been continued and acted on throughout all the transfers of the agency. It appears that Hewitt, Kercheval & Co., by letters informed and complained to Ruffner, Donnally & Co., at different times in 1855, of the bad state and condition in which much of their salt was delivered on the levee at St. Louis, and especially as to its bad condition as to cooperage and informed them of the necessity, for its preservation, of much cooperage being done, beyond what might be considered ordinary cooperage; that for what they called ordinary cooperage they made no charge, but their charges were for extraordinary cooperage. I think the evidence clearly proves that much of the salt was delivered in very bad condition, as to cooperage and otherwise; that much of it had been on hand a considerable time before delivery and had been exposed and injured by bad usage before delivery; that the cooperage for which Hewitt, Kercheval & Co., charged Ruffner, Donnally & Co., was necessary and in fact essential to the preservation of the salt and putting it in a marketable condition; that it was reasonable and prudent that Hewitt, Kercheval & .Co., should have the cooperage done, and that under the circumstances, as shown in the cause, and the law, Ruffner, Donnally & Co., should pay for it as they did. The charges of commission on barrels of salt used in filling up other deficient barrels may not be within the letter of the contract, still the charges as they occurred, were reported to Ruffner, Donnally & Co., with the other charges and were not objected to, and must be considered as acquiesced in and assented to by 'Ruffner, Donnally & Co., as *623 being within its spirit and according to their usages of trade. The charge of twenty-ñve cents per barre] for fowarded from place of storage, and not from levees perhaps not within the strict letter of the contract as originally made,' as that contract so far as disclosed was twenty cents for sales at levee, twenty cents anddrayage for forwarding from levee to country agents, and twenty-five cents, and storage for sales from place of storage. Upon the salt so forwarded from storage, Hewitt, Ker-cheval & Co., had paid the drayage from levee to place of storage, and the difference in cents to Hewitt, Ker-cheval & Co., between forwarding from the place of storage, and the levee must have been equal, at least, to five cents on the barrel. And I think the contract, according to its spirit, contemplated that Hewitt, Kerche-val & Co., should receive the same compensation for forwarding and collecting that they were to receive for sales made at the same place; and Ruffher, Donnally & Co., made no objection to these charges when the final accounts current were returned by Hewitt, Kercheval & Co., although they did make enquiry as to two other-charges, and in fact, did not raise or make any question or objection to these charges of commission on the three-thousand one hundred and eighteen barrels of salt forwarded from place of storage for some eighteen months after the return of the final account current. Besides, I think the evidence clearly establishes that these three-thousand one hundred and eighteen barrels of salt were not forwarded from place of storage contrary to instructions. It is true that during the spring of 1856, Ruff-ner, Donnally & Co., by their said agent, Smith, did instruct Hewitt, Kercheval & Co., not to forward any more salt to country agents, but to sell the salt in the-city; but it is manifest that at that time, Smith supposed that the salt then in hand would be sold in the city during the ensuing summer and fall; but during the summer and fall the demand for salt seems to have been dull and the salt was not all sold by a large amount. *624 And on ^e ^ October, 1856, Ruffner, Donnally & Co. by their said agent, Smith, by letter to said Hewitt, °°->Kercheval & Co., say : “as to Ruffner, Donnally & Cods we are anxious to have it closed off, and as we have written you, leave its management to your better judgment.” See printed record, 326; also see letter from Lewis Ruffner to Hewitt, Kercheval & Co. of date 1st December, 1856. On the 15th December, 1856, after the salt had been forwarded, said Smith, as agent for Ruffner, Donnally & Co. said to Hewitt, Kercheval & Co., by let-ler, “we are sorry to part with you as our correspondent; as it is so, we are pleased to fall into such good hands as our mutual friends, J. J. Roe & Co.” 'From the foregoing it appears that the disposition of the salt on hand was as early as October; committed by Ruffner, Donnally & Co. by their said agent, as well as one of the plaintiffs to the judgment and discretion of Hewitt, Kercheval & Co. and in the exercise of that judgment and discretion which they were desired to exercise, they forwarded the three thousand one hundred and eighteen barrels of salt to country agents and made their charges therefor, as rendered. And from the evidence of Cochran it was part of'the contract and understanding between the parties at the time of the transfer of the agency from Hewitt, Kercheval & Co. to John J. Roe & Co., that Hewitt, Kercheval & Co. should receive the twenty-five cents per barrel for forwarding to country agents. It is quite probable that if Ruffner, Donnally & Co. had left the agency with Roe & Co., that there never would have been any confusion or difficulty about either this charge for forwarding, or drayage on the six thousand seven hundred barrels of salt turned over to John J. Roe & Co., or the charges on collections for salt forwarded to country agents. The whole of this difficulty was produced by Ruffner, Donnally & Co. transferring and turning over the agency from Roe & Co. to Humphrey, Tutt & Terry in which Hewitt, Kercheval & Co. had no lot or part. The disposition of the salt being expressly committed to the *625 judgment of Hewitt, Kercheval & Co. and they having exercised that judgment and acted therein as factors,-in the absence of evidence to the contrary, it must be sumed that they acted in good faith and with prudence, under the circumstances. There is no evidence showing that Hewitt, Kercheval &Co. acted in bad faith toward Kuffner, Donnally & Co. in forwarding the salt to country agents at the time, and under the circumstances, they did. It is proven that Hewitt, Kercheval & Co. were active, energetic merchants and sold all the salt they could. Under the circumstances it can not be considered or held that Hewitt, Kercheval & Co. disobeyed instructions in forwarding the salt to the country and incurred a liability to Kuffner, Donnally & Co. for damages therefor. The charges for wood for dunnage and for money paid for labor about the necessary protection of salt at levee from freshet in the river it seems to me, from the case, as it appears, must be held to have been acquiesced in and assented to by Kuffner, Donnally & Co. as being correct and just. There is no charge of fraud in the bill against .Hewitt, Kercheval & Co. as to the matters I have been considering ; nor are any errors or mistakes in the said final settlement with them pointed out or specifically stated in the bill. It is true they file as part of the bill the said paper writing “O. G.” but that paper does not, on its face, purport to apply to Hewitt, Kercheval & Co., as it is made out specifically against Hewitt, Koc & Co. — But-even though it be allowed that the part of the charges contained in paper “O. C” may, under the allegations of the bill, be reasonably construed to apply to Hewitt, Kercheval & Co., still the bill takes no notice of the settlement and payment of Hewitt, Kercheval & Co. and does not attempt to surcharge or falsify the settlement. And in addition thereto the evidence sustains the charges as made by Hewitt, Kercheval & Co. against Kuffner, Donnally & Co., in their various accounts rendered. The *626 letter of Rirffner, Donnally & Co. written by tlieir agent -Smith, to Hewitt, Kerch eral & Co., on the 11th April, •'1856, and other letters in the record, expressly authorize , Hewitt, Kercheval & Co. to send a special messenger to the country to close up country consignments at the expense of Ruffner, Donnally & Co. Printed record, 230. I have not been able to find any evidence to justify the commissioner in concluding that the four hundred and seventy-three barrels in his report named, was used for filling up, simply to show how to account for it. The evidence of Cochran specifically proves the charge of $1,000, for cooperage in commissioner’s report mentioned, to be correct and reasonable, and so of all or nearly al the other charges made by Hewitt, Kercheval & Co., in their accounts against Ruffner, Donnally & Co.; and I do not think his evidence is impeached or shown to be unworthy of credit. Many of the charges came under his personal notice and supervision when made, and he was better qualified to testify correctly as to them, perhaps, than any other person, not interested. He was the clerk of Hewitt, Kercheval & Co., and familiar with most of the transactions. Upon the whole and without further specifications, it seems to me, that the charges of Hewitt, Kercheval & Co., made in their accounts rendered to Ruffner, Donnally & Co., are sustained by the evidence and course of business of the parties. The charge of the commissioner of $2,570.29 and $616,84 interest for error in the report of Hewitt, Kerche-val & Co., of sales of six thousand two hundred and sixty-nine barrels of salt in 1856, is, I think, unauthorized and unsupported. It is not claimed in the bill or any paper filed therewith. They report the sale of this salt at $2.35 per barrel and the commissioner charges them forty-one cents on the barrel more, simply because Hewitt, Kercheval & Co., sold salt of Ruffner, Hale & Co., at $2.76 per barrel during the same jrnar. The evidence shows that the salt of Ruffner, Hale & Co., sold in that year -was new salt and in good cooperage and full weight, *627 and that under the circumstances, the old salt of Ruffner, Donnally & Co., with bad cooperage and slack could not be expected to command as full price as salt of Ruffner, Hale & Co.; and Smith, the agent, dently so considered. The sale of the salt, and at the prices at which it was sold, in each month of the year 1856, were reported from time to time to Ruffner, Don-nally cfc Co., and no objection was ever made to the price at which this salt was sold until it was done before the commissioner in this case. I do not think there is evidence in the cause sustaining this charge of the commissioner either on the ground of mistake or bad faith on the part of Hewitt, Kercheval & Co., but the contrary. The charge of $8,555.68 and interest $2,053.36, made in the commissioner’s report for the three thousand one hundred and eighteen barrels of salt shipped to the country, at $2.76 barrel, is, I think, unauthorized. This is the same three thousand one hundred and eighteen barrels of which I have before spoken as having been shipped to country agents. The charge of $18,381.60 and interest $4,411.56, for six thousand six hundred and sixty barrels of salt, which as the commissioner says from the negligence and omission of duty of Hewitt, Kercheval & Co., as consignees, was not sold, is insupported by the evidence .or law. This is the same salt, that was turned over by Hewitt, Kercheval & Co., to John J. Roe & Co., minus forty barrels thereof sold by Roe & Co., and the same with which the commissioner has charged Humphrey, Tutt & Terry, in their account. It appears that about the first of the year 1856 another firm and partnership of Ruffner, Hale & Co. was formed for the purpose of buying and selling Kanawha salt in the West and elsewhere. This firm, as alleged in the bill, was composed of twelve persons, and it is proven that all of these persons, including Lewis Ruffner, except two, were members of the firm of Ruffner, Donnally & Co. The bill alleges that the firm of *628 Ruffner, Donnally & Co. expired with the year 1855, and only existed after that time “for the purpose of '■’closing and winding up its business.” From August 1854, to the expiration of the year 1855, and after-wards till near the close of 1856, Hewitt, Kercheval & Co. continued the agents of Ruffner, Donnally & Co. in the selling their salt on hand and undisposed of in St. Louis, at the expiration of 1855. Ruffner, Donnally & Co. ceased to purchase salt after 1855, and they shipped no salt to St. Louis after the year 1855. In the spring of 1856, Iiewitt, Kercheval & Co., at the instance of Lewis Ruffner, who was then an active partner of the firm of Ruffner, Hale & Co., as well as a member of the firm of Ruffner, Donnally & Co., took the agency for the sale of the Kanawha salt, shipped by Ruff-ner, Hale & Co. to St. Louis, for sale, and for forwarding to country agents, and during that year they sold some nine thousand four hundred and forty barrels, which brought in the gross $2.76 per barrel. I am unable to understand why the commissioner charged Hewitt, Kercheval & Co. with this six thous- and six hundred and sixty barrels of salt, unless it was because he thought Hewitt, Kercheval & Co. were guilty of negligence and violation of duty as factors of Ruffner, Donnally & Co. in accepting the agency for the sale of the salt of Ruffner, Hale & Co., and in not selling the six thousand six hundred and sixty barx-els of salt instead of the salt of Ruffner, Donnally & Co., and at the same price, and that if the salt of Ruffner, Hale & Co. had been sold by them, the persons who bought the Ruffner, Hale & Co. salt, would have bought the old salt of Ruffher, Donnally & Co. at the same price. Now, it must be remembei’ed that Hewitt, Kercheval & Co. did sell of the old salt of Ruffner, Donnally & Co. six thousand two hundred and sixty-nine barrels during that year. And Hewitt, Kercheval & Co. deny that Ruffner, Don-ally & Co. had any such right, as that Hewitt, Kerche-val & Co. could violate it by acting for Ruffner, Hale &, *629 Co. in the sale of Kanawha salt for them; that they were free and independent commission merchants, and no obligation of contract or otherwise not to sell Ruffner, Hale & Co., and they would in no event allow themselves to come under any such obligation to Ruff-ner, Donnally & Co., or to any other firm or person. And that it was understood and desired by Ruffner, Donnally & Co. and Ruffner, Hale & Co. that they should take charge of and manage the salt business for Ruffner, Hale & Co. at St. Louis, and thus prevent all coalition, and shut out competition, and so avoid a decline in price, which, owing to the fact that Ruffner, Donnally & Co’s salt was old, out of condition and unsaleable, would have been specially oppressive upon them. Hewitt, Kercheval & Co., deny that they undertook or promised to close out the salt of Ruffner, Dounally & Co. in 1856, as charged in the bill. They further say, substantially, that in making, and in endeavoring, to make sales of the salt.of Ruffner, Don-nally & Co. and Ruffner, Hale & Co. they gave preference to the salt of Ruffner, Donnally & Co. and sold all they could of it. The commissioners in making this large charge against Hewitt, Kercheval & Co. is to my mind clearly not sustained by the evidence or facts in the case.and the law as applicable thereto. First. Because the correspondence of J. B. Smith, as the agent of Ruffner,.Donnally & Co. with Hewitt, Ker-cheval & Co. on the 10th and 30th of March, 1856, and of L. Ruffner one of the plaintiffs, on the 1st April, 1856, and of Ruffner, Donnally & Co., by said Smith, on the 4th of April, 1856, and other facts and circumstances appearing in the cause, show that Hewitt, Kercheval & Co. took the agency for the sale of the salt of Ruff-ner, Hale & Co., at St. Louis, with the knowledge and consent of Ruffner, Donnally & Co. ■ Second. That the salt of Ruffner, Donnally- & Co., which was unsold on the 22d of December, 1856, by Hewitt, Kercheval & Co. and which was turned over to *630 John J. Noe & Co., was, by L. Ruffner, one of the plaintiffs, recognized as the salt of Ruffner, Donnally & Co., ■’and also by Ruffner, Donnally & Co., by their general „agent, John B. Smith and that the transfer of the agency of that salt to John J. Roe & Co. as their agents and as their salt was fully recognized and assented to by Ruff-ner, Donnally & Co.; that Ruffner, Donnally & Co and Ruffner, Hale & Co., kept the agency of the sale of their salt with the same persons in St. Louis from the time the salt of Ruffner, Hale & Co. first appeared there in market, and when the agency of the one was transferred, the agency of the other was, also, to the same person, and and without objection, but in fact by consent. When Smith as the general agent of Ruffner, Donnally & Co., for the West, sanctioned and consented to the transfer of the salt of Ruffner, Donnally & Co. to John J. Roe & Co., he knew that the agency for the sale of the salt of Ruffner, Hale & Co. wras also transferred to them; and so of the transfer to Humphrey, Tutt & Terry afterwards añade. Smith also became the local agent of Ruffner, Hale& Co. at Louisville, in the spring of 1856, while he was the agent of Ruffner, Donnally & Co. as aforesaid, and he continued in both agencies so far as I am able to see, without objection. Third. When the salt was tranferred to John J. Roe & Co., no claim, or pretence of claim, was urged or intimated as against Hewitt, Kercheval & Co., for any such cause, nor was any such claim made at the time Hewitt, Kercheval & Co., retnrned their final accounts current showing the debit of Ruffner, Donnally & Co., to them or within any reasonable time thereafter, nor indeed, so far as the record shows, until the filing of the bill in this cause in the Spring of 1859 ; and then the claim was not for the value of the salt. And, further, in January, 1857, long after all the facts to this respect were fully known and after Hewitt, Kercheval Co., had rendered their final account's current, Ruffner, Donnally & Co., by their agent Smith, for and on behalf of Ruffner, Don- *631 nally & Co., directed tbe balance due Hewitt, Kerche-val & Co., according to their final account current to be . _ ’ t t paid, and it was so accordingly paid. 15 o J r . , . Without deciding tbe abstract proposition ox whether a factor engaged in the selling of salt for another, is guilty of a violation of duty by simply becoming the factor of a third person, without consent, for the sale of salt at the same time and place, I feel constrained to hold, in this case, that it does not appear that Hewitt, Kercheval & Co., under the facts and circumstances disclosed by the record, were guilty of negligence or violation of duty to Ruffner, Donnally & Co., in acting as the factors of Ruffner, Hale & Co., for the sale of their salt in the year 1856. And if they had violated their duty in this respect, they would not thereby necessarily become chargeable by Ruffner) Donnally & Co., with the value of their salt not sold. The charge in the commissioner’s report against Hewitt, Kercheval & Co., of $1,818.01 and interest $436.32 relating to said six thousand two hundred and sixty-nine barrels of salt sold in 1856, and being the last item in the commissioner’s account “B.” against Hewitt, Kercheval & Co., is clearly not supported, and to a great degree, for the reasons herein stated, in eonsid-ing the charges of forty-one cents per barrel for the same six thousand two hundred and sixty-nine barrels sold in 1856. On the whole, therefore, there was no error in the decree of the court in sustaining the exceptions of Hewitt, Kercheval & Co., to the said report of commissioner Laidley. The plaintiff filed no exceptions to the report of the commissioner as to the accounts of Hewitt, Roe & Co., or Hewitt, Kercheval & Co., or either of them. The commissioner referred to the court the matter of the record of Houseman, Smith & Co., against Hewitt, Ker-cheval & Co., filed as evidence before him by Hewitt, Kercheval & Co., for its judgment, and the court decided that the amount of the money shown by the said record *632 against Hewitt, Kercheval & Co., is a proper charge against the complainants, and accordingly, for this ac-¿ecree(j {n favor 0f Hewitt, Kercheval & Co., the plaintiffs for the sum. of $1,348,21, being the principal and interest of the recovery aforesaid due at the date of the decree, and also for the further sum of $161,50, being the principal and interest paid by them for defending the same. It is argued here that it was error in the circuit court to allow Hewitt, Kercheval & Co, this amount or any other amount on account of the recovery of Houseman, Smith & Co., against Hewitt, Kercheval & Co. The facts in relation to this matter as disclosed by the record are substantially as follows, viz : That the instructions of Ruffher, Donnally & Co., to Hewitt, Kercheval & Co., were to sell their salt by the barrel according to the lick weight, deducting therefrom a tare of twenty-five pounds on the barrel. In the year 1855, Hewitt, Kercheval & Co., as the factors of Ruffher, Donnally & Co., sold to Houseman, Smith & Co., twenty-six hundred barrels of salt at forty cents per bushel, according to lick weight, and in accordance with their instructions, as they contend, and delivered, or caused to be delivered, the same to Houseman, Smith & Co. Afterwards, in February, 1856, Houseman, Smith & Co., brought suit to recover damages from Hewitt, Kercheval & Co., on account of the shortness of the -weight of the salt — They alleging that they bought eighteen thousand seven hundred and sixty-six and five-eighths bushels of salt as being contained in said two thousand six hundred barrels, when in fact there was only fifteen thousand nine hundred and forty-two bushels of salt in said two thous- and six hundred barrels. Hewitt, Kercheval & Co., shortly after said suit was brought, informed Ruffner, Donnally & Co., thereof, and Ruffner, Donnally & Co., by their agent, were informed of the suit by letter, and during the pendency thereof allowed and paid, without objection, some costs incurred *633 by Hewitt. Kercheval & Co., in preparing for making •defence thereto, as may be seen by some of the accounts current of Hewitt, Kercheval & Co., rendered in During the pendency of the suit Hewitt, Kercheval Co. employed counsel and made defence to the suit, and the plea filed by them was, substantially, that they sold to Houseman, Smith & Co., two thousand six hundred barrels of salt at the measure weight marked on the barrels, less twenty-five pounds per barrel as tare, at which weights the said twenty-six hundred barrels, contained eighteen thousand seven hundred and forty-six and thirty-three hundreths bushels of salt; that at the time of the sale of the salt it was proposed by James Houseman, one of the plaintiffs therein, that Hewitt, Kercheval & Co., should sell the salt to the plaintiffs at forty cents per bushel, at actual measurement; that the number of bushels should be ascertained by weighing the salt or by re-weighing a part, and thus finding the falling off from the original, or lick weight, as marked upon the barrels, and making a corresponding deduction or average loss on the entire lot of salt: Both of which propositions were refused by Hewitt, Kercheval & Co., who did, in fact, only sell the salt at the original lick weights, as marked on the barrels, less the twenty-five pounds per barrel, as tare &c. In October, 1858, at the trial of the cause, Houseman, Smith & Co., recovered judgment against Hewitt, Ker-cheval & Co., for $787.38 debt, together with $51.95 costs, which Hewitt, Kercheval & Co., paid, and also paid $100, attorney’s fee for defence, of which Hewitt, Kercheval & Co., notified Kuffner, Donnally & Co., after the recovery, by letter dated October 16th, 1858, and required of Kuffner, Donnally & Co. payment thereof. On the 16th of February 1856, Kuffner, Donnally & Co., by their agent, Smith, wrote Hewitt, Kercheval & Co., in answer to their letter informing them that the suit wras brought as follows: “We are sorry Houseman, Smith & Co., chose to trouble you in this matter, as *634 wc are at the same time confident they got just what they "bought,.and.as they.boughtit, we would prefer that the "thing should be arbitrated, as it is less trouble; but we ..will say to you, act in the premises as if it were your own and we will be satisfied with whatever you do.” Printed record 330. See also in printed record 331, for a further letter. Hewitt, Kcrcheval & Co., accounted to Ruffiner, Donnally & Co., for the salt so sold to Pious-man, Smith & Co., and for the full amount received. The case was not arbitrated as Hewitt, Kercheval & Co. seem to have desired it should be. The general doctrine seems to be that if an agent has, at the express or the implied request of his principal, necessarily incurred expenses in carrying on or defending suits, for the benefit of his principal, these expenses must be borne by the latter, and the agent will be entitled to'recover them from him. And if an agent has, without his own default, incurred losses or damages, in the course of transacting the business of his agency, or in following the instructions of his principal, he will be entitled to full compensation therefor. Story on Agency secs. 235 and 339 and cases there cited. It is not every loss or damage, for which the agent will be entitled to re-imbursement from his principal. The latter is liable only for such losses and damages as are direct and immediate, and naturally flow from the execution of the agency. If, therefore, the losses or damages are casual, accidental, oblique or remote, the principal is not liable therefor. In short, the agency must be the cause, and not merely the occasion, of the losses or damages, to found a just right to re-imbursement. Story on Agency see. 341. Ruffncr, Donnally & Co., had no information touching the said suit or its merits before the trial thereof, except such as they derived from Hewitt, Kercheval & Co., by letter, and of course what they said and did in relation thereto, by letter or otherwise, was on the faith of the correctness of that information. So far as I can see *635 from the record in the case of Housman, Smith & Co., against Hewitt, Kercheval & Co., the only issue presented at the trial by the pleadings was whether Kercheval & Co., had sold the salt by lick weight or tual weight, and it by lick weight whether they bad delivered the full amount. The issue in the case was found against Hewitt, Kercheval Co., that is to say the jury upon the issue, must have considered, either that the whole amount sold was not delivered, if the sale -was by lick weight, or that the sale was not by lick weight but actual weight — otherwise they could not have found the verdict for Housman, Smith & Co., against Hewitt, Ker-cheval & Co. The court seems to have been satisfied with the verdict, as it rendered judgment for the full amount thereof and costs. If Hewitt, Kercheval & Co. sold by lick weight and did not deliver the full amount and the recovery was on that account, then the recovery was because of their default. If they sold by actual weight and not lick weight and delivered the amount sold according to lick weight, but not according to actual weight and the recovery was on that account, then they disobeyed thior instructions and the recovery was because of their default. The record of that cause, as presented, is strong evidence against the right of Hewitt, Kercheval & Co., to recover against Kuffner. Donnally & Co., and I do not think its force is overcome by other evidence in the record. It is true the record proves the recovery, but when taken in connection with the evidence], as to the instructions of Hewitt, Kercheval & Co., by Kuffner, Don-nally & Co., it also tends strongly to prove that the recovery must have been had by reason of the default or neglect of Hewitt, Kercheval & Co., either in the sale or-ín making a reasonably proper and diligent defence to the suit. I think the circuit court, under all the evidence, erred in decreeing in favor of Hewitt, Kercheval &, Co., against Kuffner, Donnally & Co., for the amount of the recovery of Housman, Smith & Co. The firm of John J. Koe & Co. was formed about 1st *636 Jani^ry, 1856. This firm, as I have stated, was composed, alone, of Noe & Moore, and they were, commission c°->mei’Chants jn g¡._ Louis. As heretofore stated, the firm of Kercheval & Co., at or about the time of their dissolution, and about the 22d of December, 1856, by an arrangement of Hewitt, Kercheval & Co., Koe &Co. and plaintiff Lewis Ruffner, which was recognized, sanctioned, ratified and acted onb)7 Ruffner, Donnally & Co., by their general agent John D. Smith, Hewitt, Kercheval & Co. transferred the salt of Ruffner, Donnally A Co., in then-hands in St. Louis, not disposed of, and that shipped to country agents by them and Hewitt, Roe & Co., which had not been fully accounted for, and all the notes, bills and evidences of debt) of Ruffner, Donnally A Co., in their hands to said Roe, A Co., and Roe & Co. received the same and held the agency as the agents and factors of Ruffner, Donnally & Co. until the-day of January, 1857, about- one month only. During that time the firm of Ruffner, Donnally & Co. being pressed for money to meet their engagements, and protect their credit, through their said agent, Smith, procured Roe & Co. to make advancements to Ruffner, Donnally & Co. by acceptances, Ac. on the faith of the salt in their hands for sale and that in hands of country agents, notes, Ac., to the amount of some $25,000.00. Roe &Co., during said month, sold forty barrels of the salt turned over to them for which they rendered an account to Ruffner,- Donnally A Co., about the-day of January, 1857, in which it will be seen that they charge on each barrel sold 25 — 8 cents, that is to say seventeen cents per barrel according to the arrangement to which I have before alluded. Also on the-day of January, 1857, they rendered to Ruffner, Donnally A Co. an account current to date, stating their charges against Ruff-ner, Donnally A Co. for cooperage and other things in the commissioner’s report mentioned. To this account current and report of sales no objection appears to have been made or pointed out, in any reasonable time, nor indeed till long after the commencement of this suit. *637 About the-day of January, 1857, Jolin J. Roe & Go. by and in pursuance of an arrangement made and agreed upon by Humphrey, Tutt & Terry, John J. & Co. and plain tiff Lewis Ruifner, sanctioned, and ratified'by Ruffner, Donnally & Co. by their said agent, John B. Smith, transferred to Humphrey, Tutt& Terry the balance of the salt in their hands in St. Louis unsold, and also seven thousand seven hundred and seventy barrels of salt shipped to country agents by Hewitt, Kercheval & Co., not fully accounted for and $19,034.56 of bills and notes belonging to Ruffner, Donnally & Co. which seems to be $1,883.39 more than received from Hewitt, Kercheval & Co. and seven hundred and eighty-nine barrels of salt less than was shipped by Hewitt, Kercheval & Co. to country agents and turned over to John J. Roe & Co. John J. Roe & Co. retained the unsettled salt matters placed by Hewitt, Roe & Co. in the hands of country agents in pursuance of said arrangement to indemnify them against the indebtedness of Ruff-ner, Donnally & Co. to them on acceptances, &c. Roe & Co. took from Humphrey, Tutt & Terry receipts, &c., which fully appear in the record. Afterwards, in October, 1857, John J. Roe & Co., had and made a full adjustment and settlement of their accounts and claims, and of the salt placed by Hewitt, Roe & Co., in the hands of country agents &c., with plaintiff Lewis Ruffner and said John B. Smith, agent of Ruffner, & Co., and upon settlement and adjustment the said Smith with the full knowledge and consent of said Ruffner, in consideration of the sum of $2,000.00 paid by said Roe & Co., to Ruffner, Donnally & Co., gave to said Roe & Co., a receipt in full settlement of all claims against them and against Hewitt, Roe & Co., and relin • quished and transferred to them all notes, accounts, salt held by country agents, and all evidences of indebtedness to Ruffner, Donnally & Co., or to them for or on account, growing out of previous transactions with them as the agents of Ruffner, Donnally & Co., for the sale of *638 Kanawha salt, agreeably to tlieir proposition, made to Ruffner, Donnally & Co., in their letter of the 9th of This settlement and adjustment must have been made with a knowledge of all the facts at the time by Ruffner and Smith, the agent; and while these facts were fresh and familiar said Smith, the plaintiff’s witness, in his deposition, says he directed and sanctioned the transfer of the salt and other effects of Ruffner, Donnally & Co., in January, 1857, from John J. Roe & Co., to Humphrey Tutt & Terry. He also says, substantially, that all his acts as agent of Ruffner, Donnally & Co., up to the date of his deposition, were recognized by Ruffner, Donnally & Co., and that John J. Roe & Co., had seven thousand four hundred and five barrels of salt transferred to them, it. being the balance of Hewitt, Roe & Co’s., salt which they settled for, and that the receipt, to which I have referred is correct, that the receipt was intended to close said Roe & Co’s., account in full; also the seven thousand four hundred and five barrels of salt transferred to said Roe & Co from Hewitt, Roe & Co.; that the seven thousand four hundred and five barrels of salt was all Hewitt, Roe & Co., had, and that has been closed and paid for by said Roe & Co. Ruffner, Donnally & Co., in the letter of 13th November, 1857, written by said Smith enclosing said receipt to Roe & Co., to which I have already referred says that the account of said Roe & Co., and Hewitt, Roe & Co., stood open on their books, and asks for a copy of Roe & Co’s., account against Ruffner, Don-nally & Co.; also of Hewitt, Roe & Co., against same that Ruffner, Donnally & Co., might enter them, and close and square both accounts, saying that the accounts asked for had been rendered, but had been lost or destroyed. In accordance with this request said Roe & Co., ■ did send to Ruffner, Donnally & Co., their final account current or a copy thereof, on the 24th November, 1857, which appears in the record, to which no objection or exception appears to have been made in any way or respect or to said receipt, until in April, 1860, in the ex- *639 animation of said Jobn B. Smith, and afterwards in 1861 before the commissioner, as per his report. This final' account closed and squared the accounts of Boe & and Buffner, Donnally & Co. The plaintiffs must known of this receipt and settlement and of Boe & Co’s., accounts and accounts rendered before and when they filed their bill; still the bill makes no reference to the receipt or settlement and does not surcharge or falsify it, or attempt to do so, nor in fact does the bill, as I understand it, claim, expressly, that said Boe & Co., are indebted, to Buffner Donnally & Co., on any account. It does claim, expressly that the other firms are each indebted, and asks a settlement of the accounts of Boe & Co., as wrell as the others,, as though no settlement of their accounts was ever made. Fraud is not alleged or proved in the transactions of Boe & Co., or in the said .settlement, nor is any sufficient reason shown why the returns of Boe & Co., and said settlement, should be disturbed. Much of the law I have stated and much I have said in considering the case as to Hewitt, Boe & Co., applies directly to the accounts' of John J. Boe & Co., and the said settlement thereof. The receipt and settlement are set up and íelied on by Boe & Co., by their .answer filed, which is Sworn to by John J. Boe. The answer of Boe & Co. is responsive to the bill, and expressly denies any and all indebtedness or liability to Buffner, Donnally & Co., and the -answer, and indeed all the answers were filed, and the most of the proceedings .had in the cause several years prior to 1869, when the Code of West Virginia took effect. Entertaining these views I do not feel at liberty to determine that there is error in the decree of the circuit court in sustaining the ■exceptions of John J. Boe & Co., to the' commissioner’s .report. I have hereinbefore ascertained and stated the amount ■of salt on hand in St. Louis, and in the hands of country agents, shipped by Hewitt, Kercheval & Co., notes, bills, &c., that were transferred from John J. Boe & Co. to *640 Humphrey, Tutt & Terry, and I have stated that at the time the agency was transferred from Hewitt, Kercheval q03r the persons to whom shipped, or if sold, paid for by the persons in the country to whom it was so shipped. The three hundred and fifty barrels of salt sunk in the Missouri river and the fifty barrels shipped to Mize together with the said one thousand seven hundred and seventy barrels makes two thousand one hundred and seventy barrels of salt testified to by Huffner, Jr. Said Lewis Huffner Jr., in his deposition also testifies that at the time said salt was shipped the Missouri river was low, and freights high, and that the shipment of the salt was ill-advised; and his deposition shows that the freight on the salt, so shipped, for shaping it to the country was from seventy cents up to as high as $2 per barrel and that the salt was shipped in July and August, 1857. The commissioner has not charged Humphrey, Tutt & Terry with the said $514.05 or any part thereof, in the account or statement as presented by him with his report as to the accounts of Humphrey, Tutt & Terry, or with any part of the two thousand three hundred and fifty-four barrels of salt, residue of the six hun *654 ch’e