Gibbs v. Linsley

The opinion of the court was delivered by Collamer, J. The first question this case presents is, was the award between the defendant and Stewart admissible in this case ? As a general rule, no judgment can be given in evidence to settle the facts or matter on which the judgment was founded, unless it is reciprocal, and conclusive upon both the parties. This award would not bind the present plaintiffs, who were not parties to it. But there are other objections. The plaintiffs commence this action of trover as owners of the axe-, helves. They prove that Ketchum, their agent, sold them to Stewart, with all his stock of goods, and that the defendant attached them, with the other stock, on the debts of Ketch-um. They now propose to prove, by the award, that the sale by Ketchum to Stewart was void as to Ketch urn’s creditors. If the plaintiffs’ title has passed to Stewart, it is entirely immaterial to them whether Stewart can maintain an action, as most clearly the plaintiffs cannot, without title. If Ketchum had authority to sell the axe-helves, his sale to Stewart passed the plaintiffs’ title, and that could not, as to the plaintiffs, be affected or changed by any motives or conduct between Ketchum and Stewart, as to Ketchum’s creditors. The title, as to the plaintiffs, would be in Stewart until the plaintiffs showed that the sale of Ketchum was fraudulent and void, as to them. The award was, therefore, inadmissible, because the fact it tended to show was, as to the plaintiffs, immaterial. Before the sale to Stewart, these helves were the property of the plaintiffs, and Ketchum claimed no title to them. They could not have been taken by his creditors, and therefore he could not, by possibility, have been induced to sell them to Stewart to avoid his debts, whatever may have been his motive in selling the goods, which were really his own. The sale, therefore, of these helves to Stewart, must have been untainted with the pretended fraud. The plaintiffs next proceed on the ground that the sale from Ketchum to Stewart, in relation to some part of these helves, was unauthorized, and not binding on the plaintiffs ; and, for this purpose, they read the deposition of Ketchum, tending to prove that he received only a part of the helves [214] for sale, and a part were sent him by mistake, which he held ag najce(j kaqee> They then proposed to prove that Ketc’n-um> on one occasion, when he received the helves, stated the same thing., This was rejected by the court. It may, perhaps, be true, in relation to personal property, as it is of real estate, that the statement of the possessor, in relation to the extent, nature, and character of his possession, may be admissible, as a general rule. But it is to be borne in mind, that this was an issue of fact, to the court, and, in the order in which this testimony was offered, it must, even if admissible, have been extremely weak. Ketchum, in his deposition, had fully testified to the fact, and the court might well have said, when themselves were trying the issue, we do not now wish to hear that he once said what he now testifies. The purpose of this testimony was to show the sale to Stewart, in part, unauthorized. If the sale to Stewart was such as the plaintiffs could not avoid, their title was gone, and they could not maintain this- suit. Ketchum, it seems, was a general trader, and was also a factor, employed in selling goods for others. The plaintiffs put into his hands a quantity of axe-helves. All the helves which he had not previously disposed of, he sold to Stewart. Can the plaintiffs vacate and avoid that sale by showing that theyj only authorized Ketchum to sell a part of the helves ? This would, most obviously, spring a trap upon the purchaser. The sale of goods, under an agency, has given rise to many nice questions, which, in England, have been wisely put at rest, on equitable ground, by statute. 6 Geo. 4, ch. 94. But, even at common law, an agency was implied from the general course of business and usage of trade, especially in mercantile transactions. Hence, it has been uniformly holden' that “ if the owner of goods send them to an auction room, or to a broker whose business it is to sell goods of that description, the owner will be bound by the sale, without any express-consent.” Chitty on Con. 64. 2 Starkie’s Ev. 57. Pickering v. Busk, 15 East. 38. Whitehead v. Tuckett, Id. 400, The plaintiffs, then, could not have avoided the sale made by Ketchum to Stewart, by showing that a part of the helves-were not left for sale. The sale was, therefore, binding on the plaintiffs, though they had shown that fact. It was, therefore, immaterial, and so there was no error in its rejection. [215] It appears that after the defendant had given testimony of general bad character to discredit Ketchum. The plaintiffs, to sustain him, offered to prove he had once before given the same account of the transaction as that to which he now testifies. Was this admissible ? Where a witness has been discredited by showing that he has given contradictory accounts of the transaction, there, it has formerly been holden, he might he sustained by showing that he had previously given the same account that he now gives in his testimony; and Gilbert so lays it down, upon a decision in H. Mod. But this has been entirely repudiated. 1 Phil. Ev. 213. 1 Stark. Ev. 148. It has been holden in this state, that, when a- witness has been discredited by evidence of his having given a different relation, even when this evidence appeared from his own cross examination, he might be sustained by evidence of general good character. State v. Roe, 12 Vt. R. 110. But the converse of this proposition, that is, that when his general character is impeached, he may be sustained by proof of his consistent relations, has not been, and, we think, ought not to be, decided. Judgment affirmed.