Milwaukee Harvester Co. v. Tymich

Hughes, J., (after stating the facts.) We are of the opinion that the court committed no error in refusing to permit Holmes to testify, on the trial of the attachment, as to statements made by the son of the defendant Tymich, while in his father’s store, as to the whereabouts of his father, and as to his father’s wanting to sell out, and that he, Holmes, could get things cheap, etc. The son was keeping his father’s store in his father’s absence, but was not authorized to bind his father by any admission or any statement he might make. “The declaration or admission of an agent are never competent evidence against his principal, nor anything he may say before or after making the contract or the doing of an authoritative act, unless it forms part of the res gestee, or has some necessary connection with it, and is a part of the contract or act itself.” Byers v. Fowler, 14 Ark. 86. Holmes’ testimony as to what the son said his father wanted to do would have been hearsay. The son himself was a competent witness. State Bank v. Woody, 10 Ark. 638; Sadler v. Sadler, 16 Ark. 628. The court committed error in refusing to permit the plaintiff to prove that the defendant Tymich tried to collect claims from persons who had been garnished in , the action, and that he offered to give receipts for payment antedating the garnishment. True, this was subsequent to the affidavit for and issuance of the attachment. The affidavit for the attachment stated that the defendants were about to sell and dispose of their property with the fraudulent intent to cheat, hinder and delay their creditors. Trying to collect from persons garnished in the action, with an offer to receipt for payments of a date prior to the date of the garnishment, was a circumstance that should have gone to the jury for what it was worth, and it was error in the court to exclude the proof of it, for which the judgment on the attachm'mfc is reversed, and said cause No. 3818 is remanded for a new trial. In case No. 3737, of Tymich & Hobart v. Milwaukee Harvester Company it is contended that the court erred in allowing Griffith, the agent for the appellee, to use a balance sheet to refresh his memory in testifying. This balance sheet had been compared by Griffith and Tymich with the books of Tymich, and had been found by them to agree in all respects, and it was agreed between them to be correct. This was shown in evidence. The balance sheet used was taken from the books of the Milwaukee Harvester Company, and was furnished Griffith but was not made ¡by him. Under the circumstances, there was no error in the court’s allowing Griffith to refer to the balance sheet to refresh his memory in testifying. The plaintiffs offered to and did prove that the defendant Tymieh had violated his contract with them by selling their machinery, etc., to irresponsible parties, to be paid for at times different from the times provided in the contract. The defendant offered to prove that, under a similar but different contract, he had departed from the contract in selling the plaintiff’s machinery in 1894 and 1895, and that no complaint had been made of this. The court excluded this testimony, and the defendant excepted, and insists here upon his exceptions. We fail to see that a violation of a contract at one time will justify or excuse the violation of another and 'different contract at another time. Besides, the notes taken in 1894 and 1895 may have been on solvent parties. To so hold would be neither good logic nor good morals. The instructions of the court are not set out in the abstract, and we take it therefore they are correct. This we presume where the instructions are not shown in the abstract. But it is urged that the court erred in instructing the jury to return a verdict for the plaintiff in any amount they might find due. There was no error in this. This was what the jury were bound to do. They were not told that anything was due, or that they might so find. The violation of the contract was undisputed, and the court had the right to construe the contract. If the court saw that there was an undisputed liability of the defendant under the contract, it was competent for the court to tell the jury to return a verdict for any amount they might find to be due. The judgment in this case (No. 3737) is affirmed.