Norwich & Worcester Railroad v. Cahill

Waite, J. With respect to the claim of the plaintiffs in error in relation to the testimony as to the declarations of Lawrie, but one answer need be given ; and that is, the testimony has done them no harm. It was offered in support of a single issue, and that issue was found in their favour. The plaintiff below claimed, that the contract made by the [491] company withgStory, was void, by reason of the fraudulent representations of Lawrie; and to show that fraud, the mony was offered. The auditors found, that all the evidence offered by him failed to prove the fraud, and consequently, found the contract a valid one. The omission of the auditors to determine the question as to the admissibility of the testirríbny, does not vary the case. Which ever way the question is decided, the result is the same. The claim respecting an adjournment for the purpose of procuring the attendance of Lawrie to disprove the testimony as to his declarations, stands upon the same ground. The plaintiffs in error have not been injured by his absence. And then, as to the testimony of Story in relation to the acts and declarations of Dehone. The claim of the plaintiff in error, in this part of the case, is twofold : first, that the testimony was inadmissible ; and secondly, if admissible, a new trial ought to have been granted, by the court below, to enable them to procure Dehone, as a witness, to disprove that testimony. And in the first place, was the testimony admissible 1 Under what circumstances was it offered 1 The claim of the plaintiff below was this. Story had made a contract with the company to build their extension railroad ; and then made another contract with the plaintiff, by which the latter was to build a certain portion of that road. The plaintiff built the road according to his contract; but the embankments across two coves on the route, settled, so as to require additional work; and the company, by their agents, employed him to do that work; to recover for which, he brought his action. Such was the claim of the plaintiff; and in support of it, he called Story as a witness, to prove what Dehone, one of the directors of the company, and one of the committee for building the road, had said and done, as the agent of the compa* ny, in relation to that work. From that testimony, it appears, that when the additional work became necessary, Dehone enquired of the witness, what was to be done, in consequence of the settling of the embankments. Story asked him, if the company expected him to do the work at the coves, where it had settled. Dehone replied, that the company did not expect him to pay the ev492 expense, — they only wanted to know his oj n on as to the ! best mode of doing it. ⅜⅝ i (i This was said by Dehone, who was the agent of the company, while acting within the scope of his authority. For, as one of the directors, and one of the building committee, it was his duty to see that the road was completed, and in a proper manner. If Story had failed to perform the work according to his contract, it was his duty to see that the requisite meas- f f ures were taken to enforce the fulfillment. On the other hand* ⅞ if that contract had been fulfilled, and additional work was ⅞ required in consequence of an unforeseen event, it was his ;| duty to see that some person was employed to perform that, work. It was necessary that the road should be built. The company could only act in relation to it, by means of their agents, one of whom was Dehone. Now, the rule upon this N subject is very correctly stated, by Starkie, in his treatise on f f Evidence: “Whatever an agent says, while acting within the scope of his authority, the principal says ; and evidence may ⅞ | be given of such acts and declarations, as if they had been actually done and made by the principal himself.” 2 Stark. Ev. 34. Baring v. Clark, 19 Pick. 226. American Fur Co. v. United States, 2 Peters’ R. 358. But it is said, that the declarations were unaccompanied by any acts of the agent, rendering them admissible. That De-hone was one of the agents of the company, is not denied. And it appears, that at the time, he was actually inquiring as to the best mode of making the necessary repairs. In this respect, the case differs materially from that of Snowball v. Goodricke, 4 B. & Adol. 541. (24 E. C. L. 112.) where the plaintiff offered in evidence against a sheriff, declarations made by his under-sheriff, after the latter had gone out of office. Again, it is said, that these declarations were made, by one of several agents, who had no power alone to bind the company. But the question was, not as to the sufficiency and effect of the declarations, but whether they were admissible, as evidence. For aught that appears, there might have been other evidence in relation to the acts of the other agents. Indeed, the case states, that, among other evidence, this testimony was offered; thereby implying that there was other [493] evidence upon the subject. But however this may be, the , . . r J ... . . . ,' plaintiffs m error cannot avail themselves of the objection , . . i-i that form, because it was not so made on the trial. In the next place, if the testimony was admissible, did the court below err, in refusing to grant a new trial, for the purpose of enabling the plaintiffs in error to procure the attendance of Dehone, as a witness, to contradict that testimony ? This was a matter entirely within the discretion of the court, and as such, furnishes no ground for a writ of error. The authorities upon this subject are numerous and decisive. Lester v. The State, 11 Conn. R. 418. White v. Trinity Church, 5 Conn. R. 187. Magill v. Lyman, 6 Conn. R. 59. Lyman v. Magill, 6 Conn. R. 69. But was this discretion improperly exercised? Were a new trial granted, how does it appear, that a different result would be produced ? The only evidence which the plaintiffs in error show that they can produce upon another trial, is that of Dehone, merely to contradict the testimony of Story as to his declarations; and it is no where shown by them, that there was not other testimony besides that of Story, proving the declarations made by Dehone. How can the court see, that the testimony of Dehone would overbalance that of Story; or if it did, that there was not an abundance of other evidence to support the claim of the plaintiff, aside from the testimony of Story ? Enough is not shown to make it appear that injustice was done on the trial. Again, why was not Dehone produced on the trial as a witness ? The plaintiffs in error knew, or had the means of knowing, for what they were sued ; for they were entitled to oyer of the account of the defendant in error. They also knew, that Dehone, at the time the services were performed, was one of their agents, who had power, if necessary, to employ the defendant to perform the work charged. Why were not their agents produced on the trial, to show what contracts they had made ? There may have been good reason for this omission; but it is not shown. A new trial will never be granted for the purpose of admitting further evidence, if that evidence might have been adduced on the former trial, by the use of due diligence. Barber v. Brace, 3 Conn. R. 9. [494] The judgment of the superior court must, therefore, be affirmed. In this opinion the other judges concurred. Judgment affirmed.