Walsh v. Pierce

The opinion of the court was delivered by Redfield, J. — In regard to the deposition of Colburn, we think the objection came too late. The deposition was, indeed, objected to, (on specific grounds, not now urged,) before it was read to the auditors. That objection being overruled and the deposition read, 'a still further objection was started, but ruled to be out of time. That was most clearly the case. The fact that the deposition had been objected to for one reason, and admitted, did not authorize the party objecting, to raise further objections at a subsequent period. It was the same, as to all other objections, as if the deposition had been read without objection. In such cases, the standing rule, both of this court and the several county courts, expressly precludes alt subsequent objections. Nor does it make any difference, that the objection was started during the trial, and immediately after the reading. The rule requires the objection to be made before the reading. The objection to the disposition of Woodruff, that it was not taken to be used in this court, and although taken to be used in the cause, and used without .objection in the county court, cannot be used after the cause is removed into this court, is intimately connected with the point just now decided. Whenever a deposition is used in a cause, without objection, it becomes a part of the papers and exhibits, belonging to the cause, and the rule of court requires, that it “ shall be lodged with the clerk and remain in his office, subject to the inspection of both parties.” Such papers, therefore, when a cause is removed from the county to the supreme court, pass up with the cause, and if the action is book account, and it becomes necessary to send it again to'an auditor, they go out with the rule or commission to the auditor, as a part of the evidence, which either party may use. The remaining objection to the report, is founded upon the auditors allowing the plaintiffs to prove the agency of Hiram Pierce, in purchasing the goods, for which they claim to recover of the defendant, without producing the writing given by defendant to said Hiram. We do not learn, very definitely, the character or object of this writing. One. thing is [138] certain, it was never intended for the plaintiffs, and was never under their control. The agency claimed is not of a character, which might not as well be created by mere words or acts, as by writing. In such cases it is well settled that the agency may be proved by — 1st, direct evidence of agency. In this case, if the authority was in writing, it must be produced and proved. 2 Stark. Ev. (6 Ed.) 31. Johnson v. Mason, 1 Esp. C. 89. Coore v. Callaway, Ib. 115. In the present case, perhaps, if the plaintiffs had relied solely upon an authority conferred upon the agent by writing, they should either have produced the writing or accounted for its absence. But, 2, this agency may be proved by the habit and .course of dealings between the parties. And where one man suffers another to carry on business upon his credit, he is bound, I take it, to the fullest extent, by all his contracts, within the apparent scope of that business, without regard to the terms of the particular contract of agency, unless brought home to those with whom the agent has dealings, and in that case, it is for the defendant to show their limitation to be short of the apparent extent of the business. 4 Conn. R. 288. 2 Stark. Ev. 32 and notes. This rule would seem fully to embrace the present case. Mechanics’ Bank v. Bank of Columbia, Wheaton, 326. 4 Pet. C. R. 666. But, thirdly, it is fully competent for the defendant to recognize the acts of a mere intruder into his business ; and if he do, he is bound to make good the undertakings of such self-constituted agent. 2. Stark. Ev. 33 and notes. So, too where one has assumed to act on the part and behalf of another, and he is informed of such assumed agency, he must express his dissent within a reasonable time, otherwise his assent will be presumed. Amory v. Hamilton, 17 Mass. R. 103, Cairres v. Bleeckers, 12 Johns. R. 300. In the present case, in repeated instances, the defendant has distinctly and unequivocally .recognized (he- agency of Hiram Pierce, and not only promised to pay the plantiffs’ debt, when fully informed of all the- facts, but even executed his promissory notes for the amount claimed, which were to be holden by plaintiffs as collateral security. Judgment on. report for plaintiffs.