Myers v. Brice

— The decision of the Court was delivered by Green, J. There is no merit whatever in the first assignment of error. Certainly, the Court should not have rejected the receipts on the assumption that Kahoe, the agent, had no authority to sign them. Admittedly, Kahoe was the agent of the defendant, sent by him to the plaintiffs for the transaction of this particular business. He did receive the money, which was accepted and retained by the defendant. ■ The money was paid by the plaintiffs upon account of the trans [391] action in question, and the selected agent of the defendant having full power to receive the money, and, in the transaction, gave receipts for it in the name of his principal at the times it was paid. Upon no principle would it have been proper to absolutely reject them. The objection that proof was not first given by the plaintiff that the defendants’ agent had express authority to sign receipts, containing the matter appearing on the face of these papers, has no weight. In actual fact, he did sign them, and the plaintiffs were entitled to the benefit of that fact. Of course, they were not conclusive upon the defendant. If the contract between the parties was a sale, and not a consignment, the defendant was at perfect liberty to prove it, notwithstanding the receipts. He did give such testimony by himself and other witnesses without any objection, and the case went to the jury mainly on that question. Second Assignment. — The question, put to Hobson and rejected, on cross-examination, was not cross-examination, and was entirely immaterial. It could not have affected the case, whether he answered it affirmatively or negatively, and was subsequently contradicted. It did not, and could not illustrate the question, — what was the actual contract between these parties ? The same is true of the question rejected under the third assignment. Fourth Assignment. — The witness, Dunn, testified positively to the receipt of butter from the plaintiffs, giving dates and particulars of the shipments. He nowhere said that his knowledge on this subject was derived from hearsay. What he said about his understanding that the butter was the property of Myers, was rejected from the deposition by the Court on the objection of defendants’ counsel. Fifth and Sixth Assignments. — The defendant offered in evidence two papers, purporting to be bills of sale of the butter in question by the defendant to the plaintiffs. To make them admissible, he called Kahoe, his bookkeeper, who testified that he took bills, of which they were copies, to the plaintiffs’ store, before the checks were given, and left them with a clerk. He immediately added, however, that he took one of them, but did not know which. He did not name the clerk with whom he left the bill. The defendant then called upon the plaintiffs to produce the bills, and they responded by testifying, together with Hobson and Shoester, the latter of whom had taken the receipts, that they knew nothing of such bills, and had never seen or heard of them. Then the defendant offered the two bills in evidence, which were very properly rejected. The offer was a unit of both [392] bills. But the testimony in support of the offer was that only one of them was left, and which one, that the witness could not state. In no view of the case were the two bills admissible, and therefore, there was no error in rejecting the offer as made. As to the defendant’s books of account, they were not the best evidence of the particular matter in controversy, and, therefore, not admissible. The question at issue was, whether 'the contract between the parties was a sale or a consignment ? The defendant was a competent witness, and could prove by his own testimony, and by that of any other person having knowledge, what the contract was. All this he did. Had he not been a competent witness, the case would have been quite different. It might well be, that in such a situation the book-entries would have been competent from the necessity of the ease. But, as he was competent, and did testify, the necessity of introducing evidence of a secondary character no longer existed. In these circumstances, the entries are nothing but the defendant’s unsworn declarations in writing of the same fact, which he could and did prove by his own oath. The case of Welsh v. Cooper, 8 Barr, 217, is not applicable. There the very question at issue was, whether a certain person was the owner of a stock of store-goods at a certain place, and it was held competent to prove that a store-business was carried on at that place by that person, and with the goods there kept. Of course, the fact that books of account, showing sales of goods there and by that person, were constantly kept in the name of that person, was a fact proper to be proved as a part of the res .gestee. The same offer of proof was proper, and for the same reason, in the case of Welsh v. Speakman, 8 W. & S., 257. But this does not touch the present case, or the present question. The utmost that could be proved by these entries could be, and actually was, proved by testimony of a superior order, and, therefore, this inferior and unnecessary testimony was properly rejected. The seventh assignment is not pressed, nor could it be with any force, as it was a proposition to prove by the agent that he had no authority to do the act which he did do, and as a consequence of which the money of the plaintiffs was paid by them and received by him. The case of Mundorff v. Wickersham, 13 P. F. S., 87, goes further than this, and holds that if an agent obtains possession of the property of another by making a stipulation, or condition, which he was not authorized to make, the principal must either return the property, or, if he receives it, it must be subject to the condition tipon which it was parted with by the former owner. In the pres [393] ent case, the defendant was allowed to prove by the agent all the fact3 which transpired when the receipts were given, and this was as far as he could go. The eighth and ninth assignments are not pressed, and there is nothing in them. In answering the defendant’s first point, the Court below defined the duty of the agent in respect of giving information to his principal of the sale of goods, and charged that a violation of this duty was negligence on the part of the agent. This was in accordance with the defendant’s request, and covers all the abstract law that is contained in the second and third points. These latter points were refused, because there was no evidence that the loss on the sale of the butter was occasioned by neglect, or that any loss was incurred by the failure of the plaintiffs to keep the defendant informed, either for a; whole year or for any unreasonable time. The counsel for the plaintiff in error has not pointed out to us the evidence necessary to sustain these points, and, after carefully reading the testimony, we fail to discern it. The trouble seems to have been that the butter was not sold for a long time after it was shipped, on account of the very low price which prevailed, and the absence of demand. When it was sold, it was necessarily at a loss, for which neither the plaintiffs nor the foreign consignees were responsible. When the account-sales were received by the plaintiffs does not appear, but the plaintiffs’ bookkeeper, Shoester, testified that they were sent to the defendant, who retained them, shortly after they were received. The witness, Hobson, testified that he communicated constantly with the defendant from the time of shipment to the time of receipt of account, and that he kept him advised of the condition of the English market. The case was tried chiefly upon the question whether the transaction was a sale or a consignment. The evidence was com flicting, but the jui’y have determined, and upon sufficient testimony, that it was a consignment. As we see no error in the record, The judgment is affirmed. Sharswood, C. J., and Trunkey, J,, dissent.