Hill v. Canfield

The opinion of the court was delivered, November 22d 1869, by Thompson, C. J. — The first specification of error in this case is to the admission in evidence against objection, of the second interrogatory put by the plaintiffs below to Whately, a witness examined on a commission, and his answer thereto. The objection was that the interrogatory was leading, and that, therefore, the answer ought not to be received. The court overruled the objection, holding that an objection to the character of the interrogatory should have been made by the defendants before the commission issued. This was a good reason for the ruling, especially as the defendants joined in the commission by filing cross-interrogatories. This has been often held; but I need only cite Overton v. Tracey, 14 S. & R. 311, which is at hand, as sufficient authority on the point. The 73d rule of court is not applicable to the point — that refers to objections to depositions taken, and perhaps to the execution of commissions. This error, we think, is not sustained. [85] Nor do we think that the second exception below is any better founded. The witness Prescott had spoken of a rise in the price of timber in the autumn of 1865, the same season in which the controversy arose. Having so stated the fact in a general way, the plaintiff’s counsel proposed to ask him, “ what was the extent of the sudden rise in the price of timber of which you speak?” It seems to me this was proper to be asked, if what he had said was testimony, and it was not objected to, in order to give definiteness to what he had already said. Whether it would have any applicability to, or effect in the case, eventually, would depend on subsequent testimony. The court could not reject it at that stage of the case. There was no error, therefore, in receiving it. If the only ground of controversy had been the amount of damages which the plaintiffs were entitled to receive there would have been more plausibility in the objection at that point of the controversy, although not more of soundness ; but the defence was that no damage, was to be recovered at all — that they were not liable to any. Hence it seemed somewhat inconsistent to object that such testimony might subject them to too high a rate of damages, while denying liability to any. At all events, the question was properly allowed, and the answer to be given. There are twelve other assignments of error, These are upon the answers of the court to the points submitted by the defendants' counsel, and to portions of the general charge. We see nothing in any of them that looks like error, or requires much discussion. The 3d, 4th and 5th assignments relate to the effect of an alleged assent of Stephens, the agent of Shoup & Wilkinson, to a sale of the timber in controversy, by Hill, one of the defendants, to Carrier & Baum. There was certainly abundance of testimony to go to the jury tending to show that if any assent of Stephens was given to a sale of the timber by Hill it was under the belief that Hill had authority from Shoup & Wilkinson to make the sale, superinduced thereto by the declarations of Hill that he had such authority. It was contended by the plaintiffs below that if any assent were given by Stephens, or acquiescence in the sale by him, it was thus induced. If this were so, such an assent, so induced, would not bind the owners, or anybody. If he was simply the agent in the business of Shoup & Wilkinson, to sell the timber, he could not delegate his power so as to bind them, even if he had attempted it. Delegatus non delegare potest. The answers, and body of instructions on this point of the case, were, proper, and as favorable to the defendants as they had any right to expect. It was referred to the jury to say whether Stephens had assented to the sale by Hill, without being misled by him as to his authority to so sell, with the instruction, if such were the case, the plaintiffs could not recover; but if he was misled, and there was no authority in Hill to make the sale, they might. [86] This is the substance of the instructions, and they certainly were as favorable to the defendants as they could reasonably claim to have them. The sixth assignment also is not sustained. It is to the answer of the court to the third point of the defendants below. It is certainly true, as was in substance said by the learned judge, that if Hill, through fraud, and without authority, made sale of the timber to Carrier & Baum, no title passed, and did not prevent the owners from selling it to other parties. To hold the contrary would be to assent to the doctrine of market overt, although not applicable to our times, and more, for Hill had not even the possession of the property he was selling. The answer to the defendants’ fourth point was also unobjectionable. It was to the effect that if Poor, on behalf of Canfield and himself, was not deceived by Hill’s claim of a right to sell the property, and became a party in selling out their alleged interest in it to Carrier & Baum, they might be estopped from holding for themselves under a purchase from Shoup & Wilkinson. But if he made a settlement of their interest in the belief that Hill had authority, while, in fact, he had none, his contract to secure himself and his partner in the timber or lien' upon it, would, under such circumstances, not estop them in asserting title as against Carrier & Baum, under a bond, fide purchase from the owners. The defendants cannot be allowed to claim an estoppel arising out of the misrepresentations or fraud of their agent or their own. This is a principle too consonant with justice to need a reference to authorities to prove. The instructions, therefore, on this point were altogether right and proper, and the submission of these positions to the jury was right. These remarks are applicable also to the answer of the court to the defendants’ 5th point, which involves the same principle as that contained in the 4th point, and this disposes of the 8th and 9th assignments of error. In regard to the answer of the court to the defendants’ 6th point, which is the matter of the 10th assignment of error, we think the assignment is not sustained. At what time, place, and in what circumstances, conversion of the timber took place was a questioq solely for the jury, and this was the direction of the court on the subject, and was right. The 11th, 12th and 13th errors áre not substantially assigned in accordance with the rules, and we need not discuss them in ex-tenso, but in truth this is of little consequence in the case, for we have examined them and find no error in the answers of the court of which they are predicated. The 14th and last assignment of error is to the remark of the learned judge in his general charge, that “ Hill, if not the agent of the owners of the timber in the transaction, must have been [87] the agent of the purchasers from, or through him. A broker is the mutual agent of the seller and buyer, when authorized to sell, and in consequence, Baum & Carrier would be visited with the conse.quences of his acts.” We see not wherein injury could have resulted to the defendants from the remark quoted. The defendants claimed through a sale made by Ilill, not through a sale by Shoup. Nothing like that, we think, appeared in the case, and there was enough in the case to enable a jury to draw the inference, at least there was enough to be submitted to the jury to draw the inference, that Carrier & Baum became the purchasers through the agency of Hill. If so, and he had no authority to sell to them, they would take no title, and they could not escape responsibility for converting the property to their own use to which they had no right. The true import of the remark and its purpose, was to assert that if Hill had no authority in the premises, the defendants’ purchase from him would be no protection to them, and that they would be responsible for the property to the plaintiffs if they were invested with the title. This was right beyond a question. We see no necessity or call for any more elaboration of this case than we have given it, although the assignments of error are numerous and the discussion of the several questions assumed a very wide range. Therefore, seeing no error in the various rulings of the learned judge, we are brought to the conclusion that the judgment must be affirmed. Judgment affirmed.