Chorpenning v. Royce

[477] The opinion of the court was delivered, May 20th 1868, by Agnew, J. There was clear proof of the general agency of Dr. Frank Ohorpenning for George Ohorpenning, who was a mail contractor on the route from Placerville, California, to Salt Lake City, territory of Utah. The note given by Frank for George Ohorpenning to the plaintiff below, related to the business within Frank’s agency, and was given in course of it. It was not received in evidence by the court as a note for the payment of money, but as a circumstance with the other evidence to show the fact and extent of George Chorpenning’s indebtedness to the plaintiff, and was so submitted to the jury. There was no error in this. It was clearly in connection with the other evidence an acknowledgment in writing made in the due course of Frank Chorpenning’s agency of the amount coming to the plaintiff for the services which he proved that he had performed by the direction of the agent. We are not able to discover any difference between a written and a verbal statement made by an authorized agent in the due course of the business of his employer to show the amount coming to a party entitled to be paid by him in that business^ Though a note in form, this was the only effect given to the paper by the court. There was no plea in abatement, and therefore the question of partnership in fact was not raised. The defendant was the only ostensible employer and agent of the plaintiff. There was no error therefore in answering the point. Judgment affirmed.