Stinson v. Sachs

The opinion of the court was delivered by Stiles, J. — Appellant’s answer admitted the execution of the note sued on, and its delivery to the payee, Marston, but denied its endorsement to the respondent. As part of an affirmative defense it was also set up that in taking the note, which was given in payment of a life insurance premium, Marston was acting as the agent of respondent, who [392] seems to have been the general soliciting agent of the insurance company. The evidence established this fact clearly, and thereby obviated the point which appellant makes that no sufficient proof was offered as to the endorsement; for if Marston was respondent’s agent, and took the note payable to himself, respondent could sue on it -without any endorsement, since it was his note and not Marston’s. The answer fully supplied what might have been defects in the complaint, in that it did not state the agency and allege the real payee to be respondent. Appellant counterclaimed for services alleged to have been rendered by him, at Marston’s request, as the agent of respondent, and gave testimony to sustain his demand; but he did not show any authority in Marston to bind respondent to a contract covering such services, and respondent’s testimony was that Marston had no such authority. It was incumbent upon appellant to show the existence of such authority when it was challenged, as the services were not such as come within any implied authority of a mere soliciting sub-agent. The coui’t withdrew the counterclaim from the consideration of the jury, and it could not have lawfully done otherwise. The condition of the case left no defense to the note. The principal points made are all covered by the disposition of the case here made. A point is made that the court refused to grant defendant’s motion for judgment on the pleadings, because a reply was not filed within one day after service of the answer containing a counterclaim. The demand for this action seems to have been based on a rule of court which is not contained in the record, and of the existence of which we are not, therefore, advised. However, the court, upon what seemed to it good grounds, permitted the reply, which was filed on the same day as the motion, to stand, and we should not interfere with its action in that respect. [393] Two jurors were excused by the court because they answered that they were friends of the defendant and would believe his statement of a fact when it was contradicted only by the statement of some witness whom they did not know. Jurors have no right to let their personal knowledge of a witness weigh one way or another in their determination of a case put before them; therefore, upon the answers of these jurors they were properly excluded. We must advert to the condition of the record in this case. The transcript comes here properly certified by the clerk, excepting that the bill of exceptions is a detached paper, without authentication, and in exceedingly bad order. The bill mentions several exhibits but one of which appeal’s, and that one a mere loose paper without identification of any kind beyond an unsigned pencil memorandum. This court cannot accord verity to such records, and would not have reversed the judgment in this case, even had error been shown, except as it might have been found in the part of the transcript covered by the certificate. Acts, 1893, p. 126, § 14. Judgment affirmed. Dunbar, C. J., and Scott, Hoyt and Anders, JJ., concur.