Stecher Lithographic Co. v. . Inman

Haight, J. This action was brought to recover the amount claimed to be due and owing under a written contract entered into between the parties to this action. Under the provisions of the contract it is recited that the plaintiff is engaged in the lithographic business and is the owner of an invention known as a multi-color printing press, upon which letters patent had been issued by the United States of America; that the defendants are engaged in the manufacture of machinery and, as such, had entered into a contract with the American Cereal Company to furnish it with a combination machine designed to print its labels and attach them to paper boxes in which *126 the goods of the cereal company were to be packed. In order to carry out their contract with the cereal company the defendants entered into an agreement with the plaintiff by which the defendants were given a license or right to manufacture the plaintiff’s multi-color printing press for the cereal company, and that the plaintiff would furnish such zinc printing plates properly engraved for first-class work as may be needed by the cereal company at stipulated prices specified in the contract. Upon the trial it was contended on behalf of the defendants that the plates furnished by the plaintiff were not such as were called for by the contract, and that the best results could not be obtained from their use. In order to sustain the plaintiff’s claim, Frank A. Steelier, the president of the plaintiff corporation, was sworn as a witness and testified that he had a conversation with the defendant Horace Inman in reference to the contract, and that Inman told him lie was going to travel abroad and would not be at home; that he had placed a Mr. Russell in full charge of the printing business and of the machine, and that he would attend to all the correspondence and look after all of the particulars, and attend to everything connected with the machine; that thereafter the witness visited Cedar Rapids and saw the machine running while it was still in charge of Russell. He was then asked to state the conversation “ between yourself and Russell at the place at Cedar Rapids about this machine.” To this question an objection was interposed by the defendant as “incompetent, immaterial, and that the defendant cannot be be bound by the statements of Mr. Russell, and that the statements of the witness to Mr. Russell are merely hearsay and not binding upon the defendant.” The objection was overruled and an exception was taken. The witness answered: “Mr. Russell took me into the office of the Cereal Company and made me acquainted with the superintendent. The superintendent showed me two packages of Rolled Oats with labels pasted on them. On one package was a label of our make, printed from our plates, and the other package had a label *127 the same as the one pinned on the contract; and he told me-that the label printed off our press was equal and, in fact, superior to the other label; and he told me that lie saw the-press running and he was very well satisfied with the work turned out. Mr. Bussell also spoke about the press doing-work very nicely, and that he was perfectly pleased with the-result.” Thereupon the defendant moved to strike out the-statement made by the superintendent in the office of the cereal company, but limited his motion to the statement, made by the superintendent in the presence of Mr. Bussell. The motion was denied and' an exception was taken. It is. now contended that these rulings were improper, and that the-exceptions taken thereto by the defendant require a new trial.- Two questions are raised for consideration. The first is as. to the competency of the declaration of Mr. Bussell as to the character of the work done by the press, and the second is. the competency of the declaration of the superintendent of the cereal company made in the presence of Bussell to the-same effect. With reference to the first question, it appears, as we have seen, that Mr. Inman had advised the president of the plaintiff corporation that he was going abroad and that he had placed Mr. Bussell in full charge of the machine and of' the printing business,' and that he would attend to all the correspondence and look after all the particulars pertaining-thereto. Bussell was thereby authorized to represent the defendant Inman, and act for him in his place and stead. If there was anything wrong with the plates the attention of' the plaintiff’s president should have been called thereto while there was time to remedy the defect. Whatever, therefore, Bussell did or said on the occasion alluded to was done and uttered while he was discharging his duty as an agent and representative of the defendant, and while he was acting within the scope of his authority. His act and declarations, were, therefore, part of the res gestee. The admissions or declarations of an agent subsequent to a transaction in controversy, or after his agency has terminated, are not binding upon, or evidence against, his principal». *128 But when the admission or declaration is made at the time of the transaction, or during his employment, when it pertains to the matter in hand, as agent, which is within the scope of his employment, his admissions and declarations are competent, though not conclusive against his principal. (Thallhimer v. Brinckerhoff, 6 Cow. 90; Price v. Powell, 3 N. Y. 322; Bank of N. Y. N. B. Assn. v. A. D. & T. Co., 143 N. Y. 559; Booth v. Cleveland Rolling Mill Co., 74 N. Y. 15, 28; Keogh Mfg. Co. v. Eisenberg, 7 Misc. Rep. 79, 87; affirmed, 149 N. Y. 592, on opinion below; Vaughn Machine Co. v. Quintard, 37 App. Div. 368; affirmed, 165 N. Y. 649.) We consequently are of the opinion that no error was committed by the trial court by admitting the declarations of Russell under the circumstances disclosed. With reference to the declarations of the superintendent of the cereal company, they, of course, are not binding upon that company; but that company is not represented in this litigation. The only ground upon which these declarations can be justified' is that they were madeln the presence of Russell, who stood by, acquiesced in, and confirmed what was said with reference to the character of the work produced by the press. If, as we have seen, Russell was then acting within the scope of his ■employment in the place of the defendant, and he acquiesced in and confirmed the declarations of the superintendent, they were not objectionable. We have recently had occasion to examine this question with some care in a criminal case, and what we then said, we believe, correctly states the rule that should govern trial courts in the admission of this class of evidence. “ There are circumstances under which the declarations of persons made in the presence of the .accused are competent, but they are regarded as dangerous and should always be received with caution and should not be admitted unless the evidence clearly brings them within the rule. Declarations or statements made in the presence of a party are not received as evidence in themsélves, but for the purpose of ascertaining the reply the party to be affected makes to them. They are only competent when the person *129 affected hears and fully comprehends the effect of the words spoken and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement.” (People v. Kennedy, 164 N. Y. 449, 456. See, also, Wharton’s Law of Evidence, sections 1136, 1137; Greenleaf on Evidence, sections 197, 199; People v. Koerner, 154 N. Y. 355, 374.) There are other rulings made by the trial court which are brought up for review. We have examined them but find none that call for a reversal of the judgment. The judgment should be affirmed, with costs.