Buffum v. York Manufacturing Co.

Loring, J. The defendant’s first exception is to the admission in evidence of five of its letters written to the plaintiff, dated May 9,11, October 31, November 6, and November 18,1895, and of four letters of the plaintiff, to which those five letters were answers ; namely, one of May 8, answered by the defendant’s letters of May 9 and 11; one of October 22, answered by the letter of October 31; one of November 2, answered by the letter of November 6; and one of November 12, answered by the letter of November 18. The defendant also excepted to one letter written by the plaintiff, dated J une 29, which does not seem to have been answered by the defendant. These letters were introduced as part of the plaintiff’s original case, and were objected to by the defendant as letters “ written after the second machine had been sold and delivered to the purchaser.” The defendant now seeks to support its objection to the admission of the plaintiff’s letters on the ground that they were written after the controversy had originated, and were objectionable as giving the plaintiff the unfair advantage of a written argument prepared by himself '; and it undertakes to support its objection to the introduction of its own letters, on the authority of Stiles v. Western — 474 — Railroad, 8 Met. 44; Sumner v. M'Neil, 12 Met. 519; Tuttle v. Brown, 4 Gray, 457. These, eases hold that declarations made by an agent after the termination of his agency are not admissible to affect the rights of his former principal; it is evident that the objection made at the trial was made on the supposition that these cases were applicable; no objection was made at the trial to the introduction of all letters written on one side and the other prior to the sale in question, and objection was made to all letters written after the sale was made. But when, as in the case at bar, the letters are written in behalf of the defendant corporation by its general manager, who took part in its behalf in the transactions in controversy, and who, as general manager, conducted the correspondence in its behalf with respect to those transactions, the letters written by him in the defendant’s behalf are competent as its admissions. With the single exception of the plaintiff’s letter of June 29, the plaintiff’s letters were letters to which the defendant’s were answers, and were competent so far as they tended to qualify, explain, or aid in the construction of those letters. Fearing v. Kimball, 4 Allen, 125. Trischet v. Hamilton Ins. Co. 14 Gray, 456. The objection that such letters give to the writer the unfair advantage of making an argument in his own behalf was fully considered in those cases, and it would serve no useful purpose to repeat here what was said there. The letter of June 29 does not seem to have been answered by the defendant, but it had no bearing on the litigation, and the defendant could not have been injured by its introduction. In his charge to the jury, the presiding judge instructed them, that the letters were to be considered only so far as they contained statements inconsistent with the testimony of the writers of the letters ; namely, the plaintiff and the defendant’s general manager, both of whom had testified as witnesses on the stand; and that they might consider the letters so far as they affected the credibility of those witnesses. The defendant was not injured by this instruction. It was certainly proper for the jury to consider the letters in that connection if they did contain inconsistent statements, or if they contained statements which the jury might think inconsistent; and they did contain such statements. The jury might properly have been allowed, under proper instructions, to consider these letters as admissions of — 475 — the defendant, as well as statements affecting the credibility of the witnesses who wrote them. The only exception taken to the charge to the jury as to these letters was the exception to the refusal of the court to rule that “ there was nothing on which the jury could find that the defendant had made any statement in conflict with any previous statement, or with any statement or claim which it made at the trial.” The defendant excepted to the ruling of the judge refusing “ to instruct the jury that there was no evidence that the second machine could have been sold for more than the price for which the defendant sold it, namely, $26,200, and that if they should find for the plaintiff on the fifth count, their finding must be for no more than nominal damages.” No exception was taken to the instructions given as to the measure of damages; and the correctness of the instructions given, except so far as they failed to give the instruction requested, is not before this court. The plaintiff was entitled to reasonable compensation for his services in procuring the sale of the second machine, if he was not entitled to all that the defendant got for the incomplete second machine, on the basis of $26,000 for a completed machine.* Exceptions overruled. Footnotes [*] It appeared that the plaintiff sold one machine to the Dorchester Hygeia Ice Company for $28,500, the price of which had been quoted by the defendant to the plaintiff at $26,000, and the defendant thereafter paid the plaintiff on account thereof the sum of $2,500; and that subsequently a second mar chine of the same size as the first was sold to the same purchaser for $26,200. The plaintiff offered evidence tending to prove that the Dorchester,Hygeia Ice Company, at the time of the setting up of the first machine, contemplated putting in a second machine if the first should prove satisfactory; that certain parts which were furnished with the first machine were sufficient for both machines; and that the difference in price was accounted for by the fact that certain parts to be furnished as a part of the contract for the first machine were omitted in the contract for the second machine. It appeared that the amount actually received by the defendant from the Dorchester Hygeia Ice Company on account of the second machine was $20,000.