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recalling the injustice of visiting blameworthy and blameless deviation with the same penalties of absolute or insurance accountability.”

The same writer, contending for a reasonable construction of the contract or undertaking of bailment, said that the same ought not to be too literally construed against a bailee who may have found himself obliged to act While away from the bailor, and forced to act on his own judgment; and that “the good sense of the contract should interpret favorably, where restrictive use was not clearly specified.” Schouler, Bailments, §§ 140, 141; Weller v. Camp, 169 Ala. 275, 52 South. 929, 28 L. R. A. (N. S.) 1106. Particularly should this be true in cases of bailments for the accommodation of the bailOr. The law Should not be So technical and penalizing on the question of diversion or deViation as to discourage and check the doing of acts of accommodation by one person for another in the Spirit of neighborly kindneSS. In a Case involving a claim Of Wrongful delivery to another person by a mandatary that amounted to a conversion (Christian V. First Nat. Bank, 155 Fed. 705, 84 C. C. A. 53), it was said by Van Devanter, Cir. J.: “As is said by Schouler, in his work on Railments (3d Ed. §§ 58, 63), ‘the courts are indisposed to extend by inference, the perils of an unprofitable trust, and “every bailee without reward ought to be given the least trouble consistent with his actual undertaking. This is in keeping with the rule that, when a contract is fairly open to two constructions, it is legitimate to adopt the one which equity would favor.” This modern tendency WaS exemplified in the holding of this court in the case of Cicalla V. Rossi, 10 Heisk. (57 Tenn.) 67. In that case money WaS the Subject-matter of bailment for accommodation, the contract of which was evidenced by a written and signed memorandum as follows: “Received from Giovanni Rossi the sum of

five hundred and fifty dollars for safe keeps until he call for it.”

The bailee, Cicalla, instead of keeping the money in his immediate possession, deposited it in his OWn name in a bank in the city of Memphis that he considered safe but which later failed. The court, on the question of a conversion on the part of the bailee by reason of his making such a deposit, said:

“The material point of controversy, and the one on which the case should turn, is whether or not, the defendant in depositing the money in bank in his own, name acted in accordance with the consent of the plaintiff, either expressly given or fairly to be implied from the circumstances and conversation had at the time.”

Applying these principles to the facts of the pending case: We think it manifest that Woodward acted with a fairly commensurate discretion when he placed the money and checks of the bailors in the iron safe for safe-keeping, and that by fair inference from all of the circumstances that action was in the interest of the bailors and consented to by them. They, themselves, in similar circumstances, had made like deposits in safes in Jellico overnight, which fact was known to Woodward at the time of the lodgment here in question. Kirtland v. Montgomery, 1 Swan (31 Tenn.) 452, 458. The Court of Civil Appeals was of the opinion that there was no excuse for Woodward not having the bookkeeper of Hackney & Co. get the money on Tuesday morning and deliver it to the bank. But this quarrels with the very ground of liability of the bailee asSumed by that court—that the mere act of parting with possession without authority to a third person for a consummation of the delivery Would constitute a conversion. Moreover, Woodward explains that the bookkeeper was more than ordinarily busy with his own duties, it being near the close of the month when he was engrossed With his work aS accountant. Much stress is laid upon the fact that the funds were allowed to remain in the safe until up into the second day, especially in View of the fact that Ridenour had informed Woodward that he was drawing checks upOn the deposit thus to be built up. If the fund was not One converted by the act of the placing of it in the safe of another, this later circumstance would seem to be one only to be looked to in ascertaining the degree of care taken by the bailee. Did he hold the funds So long as to reach to gross negligence on his part? It seems to us that in fairness the bailors must be deemed to have known that Woodward's first duty, on the day succeeding the deposit in the safe, was to his own employers, and that his Service for their accommodation must have been accepted With the tacit understanding that Woodward's time Was not his OWn. Was it reasonable for them to demand or expect that Woodward should give Over carrying out his employers’ Schedule, mapped out for him for Tuesday, in order that the deposit should reach the bank before Wednesday? We think not. Clear it is that a case of gross negligence is not made Out. The decree of the Court of Civil Appeals is reversed; decree here dismissing the bill of complaint at Complainants' cost.

LUNSFORD V. JOEINSTON et al. (Supreme Court of Tennessee. Oct. 9, 1915.)

PRISONS 6->10—LIABILITY OF SUPERINTENDENT—TORTS OF ASSISTANT. The superintendent of a county workhouse, under Priv. Acts 1913, c. 264, creating the office of road commissioners, and providing that one of them should be superintendent of the workhouse and employ its guards with the approval of his associates, was acting in an official or governmental capacity in employing a guard, and, where he was not present when the guard, whom he had told not to shoot any prisoner, shot and wounded a prisoner, attempting to escape, he was not liable in damages.

[Ed. Note.—For other cases, see Prisons, Cent. Dig. § 12; Dec. Dig. Q:10.]

Certiorari to Court of Civil Appeals.

Suit by James A. Lunsford, as next friend of M. E. Lunsford, a minor, against Andy Johnston, Sam Hall, and Others. From a judgment of the Court of Civil Appeals, affirming a judgment against defendant Hall, and dismissing as to defendant Johnston and his surety, plaintiff brings certiorari. Affirmed.

Charles M. Roberts and W. B. Ford, both of Knoxville, for plaintiff. Maynard & Lee and Johnson & Cox, all of Knoxville, for defendants Andy Johnston and OtherS.

FANCHER, J. This suit was brought by James A. Lunsford, as next friend for M. E. Lunsford, a minor, against Andy Johnston, superintendent of the Workhouse for Knox county, Tenn., Sam Hall, a guard, and others, to recover damages for personal injuries inflicted upon M. E. Lunsford, a prisoner at the Workhouse, caused by the Said Sam Hall shooting him while attempting to make his escape. Judgment was rendered against Sam Hall, but the Suit Was dismissed as to Andy Johnston and the surety company. On his bond. The case was determined by the Court of Civil Appeals upon an appeal to that COurt, where the judgment of the lower court was affirmed. The case is before this court upon certiOrari. The Only error assigned is, in Substance, that there is no evidence to support the judgment of the Court. The position of the plaintiff is that Andy Johnston, as superintendent of the Workhouse, was not performing a governmental duty in the employment of Sam Hall as a guard, and that the relation of master and servant existed between them, and that therefore Johnston and his Official bondsmen are liable in damages to M. E. Lunsford, because the law knows Only the Superior Officer in Such CaSeS. The proof shows that M. E. Lunsford was serving a workhouse Sentence for a misdemeanor, and that he was shot by One Sam Hall, a guard at the Knox County Workhouse, on June 19, 1914, while attempting to make his escape. Andy Johnston Was Superintend

ent of the workhouse, and also a member of the Knox county road commission. These road COmmissionerS COnSisted Of three memberS, Andy Johnston being Superintendent, as Stated. The act of the Legislature creating the Office of these commissioners, being chapter 264, Private Acts of 1913, provided that one of the commissioners should be known as the Superintendent of the county Workhouse, and that the guards for Such WOrkhouse should be employed by Said Superintendent, With the advice and approval of his aSSOciateS. The proof Shows that Johnston Was not present when the shooting was done, and that he knew nothing about it until afterWard. The defendant Sam Hall was employed by the road commission, Or rather by the defendant Andy Johnston, With the advice and approval of his associates, pursuant to said act. These guards are paid for their Services by the County, and are subject to the Orders of the superintendent of the workhouse. Hall, therefore, Was not a Servant of the defendant Johnston at the time he did the shooting. Johnston was not acting in his individual capacity in Selecting Hall as a guard, but in an Official Capacity and as an agent of the county in obedience to his statutory duty, and he was therefore performing a governmental duty. A public Officer is not responsible for the Wrongful act of a SubOrdinate appointed by him under proper legal authority, unless he directed Such Wrongful act to be done, Or is guilty Of negligence in respect Of Same, Which directly and proximately contributed to the injury. Sherman & Redfield on Neg. (6th Ed.) vol. 2, § 319; Casey v. Scott, 82 Ark. 362, 101 S. W. 1152, 118 Am. St. Rep. 80, 12 Ann. CaS. 184; Robertson V. Sichel, 127 U. S. 507, 8 Sup. Ct. 1286, 32 L. Ed. 203; McKanna V. Kimball et al., 145 Mass. 555, 14 N. E. 789; Sawyer v. Corse, 17 Grat. (Va.) 230, 94 Am. Dec. 445; Walsh v. Trustees N. Y. & Brooklyn Bridge, 96 N. Y. 427; Bowden V. Derby, 97 Me. 536, 55 Atl. 417, 63 L. R. A. 223, 94 Am. St. Rep. 516. Many other cases and authorities might be cited. We think clearly under the well-recognized authorities on the subject that a public Officer is not liable for the acts or omissions Of his Subordinates employed by him. Or WOrking under his direction, unless they are acting in his private Service, but these subordinates themselves are COnSidered as Servants of the government. We do not mean to hold that there would be no personal liability in cases of negligence Or want of reasonable care in the Selection of subordinates, but that question does not arise, inasmuch as no facts are shown proving a dereliction upon the part of Johnston in this respect. The defendant Hall WaS acting Without any authority to do this act, but on the contrary in Violation of instructions. He had been inStructed by his Superiors not to shoot any prisoner.

The rule upon Which Sheriffs are held to be liable for the acts Of their deputies is based upon the fact that the deputy is acting in a personal capacity as the agent Of his principal, and the act of the deputy is the act Of the principal. In Such case it is more nearly a personal employment by the Sheriff than the Selection of a public Official. The relation of principal and agent can, in no sense, be found in the present case.



(Supreme Court of Tennessee. Oct. 13, 1915.)

1. VENDOR AND PURCHASER C: 350—ACTIONS FOR DEFICIENCY—EVIDENCE. Evidence held to show that complainants purchased a farm by the acre and not in gross, and so could recover for deficiency in acreage. [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1043–1046; Dec. Dig. 8:350.]

2. BROKERS @:94–LIABILITY OF PRINCIPAL FOR BROKER'S STATEMENTS. A landowner who makes a sale through a duly authorized broker is bound by the broker's statements as to the quantity of the land. [Ed. Note.—For other cases, see Brokers, Cent. Dig. § 136; Dec. Dig. 3:294.]



Though purchasers of land visited the

property itself and looked Over the boundaries, the fact that they did not discover a deficiency of 57 acres will not excuse the Vendors, as the purchaser could hardly be expected to discover a shortage in a tract of 600 acres.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959-980; Dec. Dig. C:334.]



Where a sale is in gross, no compensation

will be granted for a deficiency, unless the deficiency is so great as to justify a conclusion of fraud Or mistake equivalent to fraud, but if the sale is by the acre, the purchaser may recover for a deficiency at the agreed price per acre.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959–980; Dec. Dig. 3:334.]



To recover for misrepresentation as to the

quantity of land conveyed, it is not necessary that the acreage be stated in a deed, but this may be shown by extrinsic evidence.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 959–980; Dec. Dig. &=334.]

6. EVIDENCE G-:419–PAROL EVIDENCE—CONTRACT OF SALE-DEFICIENCY-RECOVERY. In a suit to recover for a deficiency in a parcel of land, the price per acre may be shown by parol, though not stated in the deed, the real contract between the parties governing. [Ed. Note:—For other cases, see Evidence, Cent. Dig. §§ 1912–1928; Dec. Dig. (3:419.]



In a suit to recover for a deficiency in a

parcel of land, parol evidence, showing the terms of the contract as to the price and number of acres, must be clear and certain; those matters not being stated in the deed.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 1008–1017; Dec. Dig. Q: 341.]

8. CONSTITUTIONAL LAW &83—IMPRISONMENT FOR DEBT—WRIT OF NE EXEAT. There was a deficiency in a parcel of land, which was sold by the acre. The vendor removed from the state and returned to collect notes for the purchase price. These were on 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 purchaser of his remedies, the writ of ne exeat would issue; , the issuance in such case, not being equivalent to an imprisonment for debt prohibited by Const. art. 1, § 18. [Ed. Note.—For other cases, see Constitutional Law, Cent. Dig, §§ 150–151% ; Dec. Dig. C+83.] 9. NE EXEAT ©:3 - ISSUANCE OF WRIT – RIGHT TO. The writ of ne exeat Will not issue for demands uncertain or contingent, and either the demand or its enforcement must be of an equitable nature. [Ed. Note.—For other cases, see Ne Exeat, Cent. Dig. §§ 3–6; Dec. Dig. 3:53.]

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FANCHER, J. This suit was brought to recover damages for a deficiency in acreage in a tract of land conveyed by the defendants to complainants, upon the ground that the land was sold by the acre at an agreed price per acre. The original bill undertook a recovery, notwithstanding the fact that the deed of conveyance did not recite the Sale by the acre, upon the ground that the original contract of Sale entered into betWeen the parties contemplated a sale by the acre, and that it is competent to look to the original contract; the deed being a mere evidence Of the Original agreement.

An amendment to the bill was filed later, seeking to reform the deed upon the ground that by mistake or fraud the instrument did not set forth the real contract of the purchase. The deed contained general Warranties, covenants of seisin, etc. It contains a description of the land by metes and bounds, except that on Some of the lines the distance is not given; the calls being for lands of other Owners or other objects. [1] The property in question, belonged to Mrs. Lou StineSpring, and the deed Was executed by her and her husband, J. B. StineSpring, to the COmplainants. The grantors were, at the time, living upon the land in question, located in McMinn county, Tenn., and complainants Were residents of Blount county, Tenn. Most of the negotiations in regard to the sale were carried on between the complainants and one C. F. Keith, Jr., who was the agent of defendants, they having jointly authorized Keith to represent them in the Sale Of their farm and appointed him by Written contract as their agent. In this contract the land was described as containing 600 acres, of which 400 acres was cleared and 200 acres in timber. Defendant Stinespring denies that he had any underStanding that the land WaS SOld by the acre, but the agent Keith, and both Of the complainants, grantees in the deed, testified positively that the understanding was that complainants were buying 600 acres of land at $50 per acre. The deed Of conveyance does not set forth the amount of the purchase price, it appearing that Stinespring did not want to put on the face Of the deed the consideration to be paid, and the purchasers probably did nOt Want the deed to ShOW the real COnSideration on account of a desire to keep the taxes as 10W as possible. The contract of agency was signed by both Mrs. Stinespring and her husband, appointing Chas. F. Keith, Jr., their exclusive agent to procure a purchaser or sell the land. Keith testified that Stinespring told him that the farm contained over 600 acres and that before the deed was made to complainants, he, Keith, told Stinespring the terms upon which the land was sold; that it had been sold for $30,000, based on 600 acres at $50 per acre. He testified explicitly that he told the purchasers there were 600 acres in the farm listed to him by StineSpring. Complainants Caughron and Goins testified that they relied upon the statement that they were to get 600 acres of land, and that they would not have bought the farm if they had known that it contained less than 600 acres. Defendant Stinespring testified that after the sale had been made, Keith told him that he had sold the farm for $30,000, and the terms upon which the Sale was made. He and his wife thereupon executed the deed. The county surveyor of McMinn county was employed by the complainants after their purchase of the farm to make a survey and calculation of acreage, which was done, and it was determined that the farm contained Only 542.2 acres. The surveyor stated that it was impossible to follow the calls of the

C: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and many of them Were Short of the distance called for. He was asked as to each call and each line given in the deed, and it was found that practically all of the calls were incorrectly given in the instrument. He testified that the lines Were Well established and the COrners located. [2, 3] From this testimony we are satisfied, and find as a fact, that the complainants purChased the Stinespring farm from the defendants through their regularly authorized agent at $50 per acre, and paid therefor in money and notes the sum of $30,000, upon the basis and the distinct understanding that the farm consisted of 600 acres; that complainants relied upon this representation of acreage, and that they would not have given $30,000 for the farm if they had not believed that it Contained 600 acres. The defendants were bound by the statement of their agent as to this representation of acreage. Complainants looked over the land prior to their purchase. While it is evident as a practical proposition that they could see the body of land they were to receive and form an estimate of its size and value, yet it is also apparent, that although the deficiency in acreage, being 57.7 acres, was sufficient in amount to be material in the contract, yet Without an actual survey a purchaser could Ordinarily be deceived as to the number of acres in SO large a tract Of land. After the sale of the land the defendants moved to the state of Florida. At the time the bill in this case was filed defendant J. B. StineSpring was in McMinn county temporarily. One of the notes for purchase money had fallen due, and it was alleged in the bill that a certified check had been given to defendant Stinespring in part payment of this indebtedness, which payment had been made before they ascertained the shortage in aCreage; that J. B. Stinespring had also taken the notes from the bank at Athens, and that he then had in his possession this note, upon which was then due $2,188.88; that the note is payable to J. B. Stinespring or order, and there is nothing on the face thereof to put any purchaser of the same on notice as to any equity or right that the complainants might have therein in the way of a set-off or Counterclaim for the shortage in acreage. They further averred that said defendant had no other property in Tennessee, and that he WaS fixing forthWith to leave McMinn County and go to his home in Florida and Would not return, and was seeking to evade accounting to complainants for the shortage in Said acreage, and unless restrained by proper fiat would do so, and thereby defeat the effort to obtain redress or relief against the defendants. In addition to the prayer for ordinary proCeSS, COmplainants also prayed for an injunction to restrain J. B. Stinespring from disposing of said note or said cashier’s check; Said note and cashier’s check to the court, to be held subject to the orders of the court, and that attachment issue, attaching the note alld cashier’s check. There Was also a prayer that a Writ of ne exeat republica issue to stay defendant J. B. Stinespring from departing from or leaving the state without the express permission Of the Court, and they sought to have the said note credited with the sum of $2,890 for the shortage in acreage. Fiat was obtained and Writs issued for the injunction, attachment and Writ of ne exeat prayed for, and all said writs were executed On the defendant StineSpring, except the Writ of attachment; the return of this Writ being search made and the property described therein not found. Later, by agreement and entry of order in the cause upon the application of said Stinespring, he executed a bond in the sum of $5,780, payable to the State for the use of complainants, conditioned that he should appear in person before the chancery court at Athens, Tenn., and should abide by and perform the judgment of the court in this cause. Complainants answered the bill, denying the material allegations therein. The chancellor upon final hearing dismissed the bill, and upon a motion for that purpose quashed and dismissed the writ of ne exeat. A reference was made to the master to report On the damages sustained by defendant for the wrongful issuance and execution of the Writ of ne exeat. Complainants appealed upon the Whole decree. [4-7] Where the sale is in gross the rule is that no compensation Will be granted for a deficiency, unless such deficiency is so great as to justify a conclusion of fraud, or mistake equivalent to fraud. If a Sale is by the acre and there is a deficiency, then the purchaser can recover for such deficiency at the agreed price per acre. For where the price is by the acre, if there is a misrepresentation made by the vendor and relied on by the vendee as to acreage, producing a loss, such misrepresentation, whether intended so or not, has all the essential elements of legal fraud or mistake. It is not absolutely essential in order to recover for a misrepresentation as to the quantity of land conveyed that the acreage should be stated in the deed, but this may be shown by extrinsic evidence. Likewise, the amount of the consideration may be shown by parol testimony. The deed is only the execution of the contract, and the real contract and understanding between the parties in this respect will govern on the question. Miller v. Bentley, 5 Sneed, 671; Seward v. Mitchell, 1 Cold. 89; Barnes v. Gregory, 1 Head, 230; Horn V. Denton, 2 Sneed, 125; Deakins V. Alley, 9 Lea, 494; Rich v. Scales, 116 Tenn. 65, 91 S. W. 50. The present case is one where there is a deficiency in acreage material in amount and affecting the contract; and, although the

deed does not disclose the real contract aS to the number of acres nor the price per acre, yet under the authorities it is clear this may be shown by extrinsic testimony. Where a matter of this kind must be presented by parol testimony alone, a Safe rule to lay down would be that the proof should be clear and unmistakable, because matters arising outside the Written instrument should be clearly proven. However, in this case we find no difficulty in coming to the conclusion that there Was a clear understanding between the agent and the purchasers that the price was to be $50 per acre, and that the body of land contained 600 acres. The grantors in their contract With the agent had represented the farm to contain 600 acres, and in addition one of the grantors had stated to the agent that he thought it Would run out more than that. It was not apparent from the face of the deed that there was less than 600 acres of the land, because Some of the calls did not state the distance from One point to another in the lines. Moreover, it was found by the survey that there was a considerable deficiency in the calls for distance where the deed recited Such distance from corner to Corner. We think therefore the chancellor was in error in dismissing the bill. [8] Under the record the Writ of ne exeat was properly issued. The defendant was a nonresident of the State and WaS Only Within the jurisdiction of the court temporarily. He had no property in the state except the items of personal property which were on his perSon. He Was about to remove With this personal property beyond the jurisdiction of the court. It was very essential to have the defendant in the custody of the court So that its Orders and decrees might be made to operate upon him. The injunction in such case Would have been insufficient. The Writ of ne exeat is not frequently iSsued, because the occasion for its demand seldom arises. Nevertheless, it is directly recognized in our statute (Shannon's Code, § 6246) providing that injunctions, attachments, Writs of ne exeat, and Other extraordinary process shall be granted by the chancellor, circuit judges, and judges of criminal and Special courts. It is within the power and jurisdiction of the chancery court in a proper case to grant the writ. Gibson's Suits in Chancery, § 864; Smith v. Koontz, 4 Hayw. 189. In Smith V. Koontz, the Writ Was iSSued in apprehension, based upon the character of the defendant and information that there Was danger of the removal of the negro Slaves Who Were the Subject of the COntroVerSy. The issuance of the writ in this case is not equivalent to imprisonment for debt, which is prohibited by our Constitution (article 1, § 18). In any case where it would amount to SüCh imprisonment it WOuld neC68sarily have to be denied. In this case the

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