Deming v. Chase

The opinion of the court was delivered by Royce, J. In determining the question as to whether the evidence of Rolfe was properly admitted, it becomes important to ascertain the construction which should be put upon the letter which was written by the defendant to the plaintiff in reply to the letter written by the plaintiff to him on the 14th of September. [388] The plaintiff, in the letter of the 14th, after informing the defendant that the horse was not well, asked him how much money it would take to buy the horse. The defendant replied that ho would take $1500 for the horse just as he then was, and as the plaintiff had written him that the horse was sick, if he, plaintiff, bought him he must take him as he was, and that he might trade with Barnard, and anything Barnard would do would be all right. This letter contained a distinct, unequivocal offer, and if the plaintiff had accepted the offer, he would have been bound by its terms, and 'would have taken the horse with all defects.' If the plaintiff did not choose to accept the offer, the letter gave him the right to trade with Barnard upon such terms as he and Barnard might agree upon, and gave the plaintiff to understand that anything that Barnard might do would be all right. This is substantially the construction which the court put upon the letter, and we think it is the correct construction. The plaintiff traded with Barnard for the horse, and for the purpose of making the sale, Barnard must be regarded as the agent of the plaintiff. It has been claimed that inasmuch as Barnard was only a special agent to make this particular sale, he had no authority to bind his principal by a warranty of the property sold. It is true that there is a distinction made between the authority of a general and a special agent in this particular. In Finn v. Harrison, 3 Term, 757, Ashurst, J., in speaking of this distinction, says that if a person keeping livery stables, and having a horse to sell, directed his servant not to warrant him, still the master would be liable on the warranty, because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private conversation between the master and the servant; but if the owner of a horse were to send a stranger to a fair, with express directions not to warrant the horse, and the latter acted contrary to the orders, the purchaser could only have recourse to the person who actually sold the horse, because the servant was not acting within the scope of his employment. And in Pickering v. Busk, 15 East, it was held that if the servant of a horse-dealer, with express directions not to warrant, do warrant, the master is bound. But inasmuch as a power to do any act com [389] prises a power to do all such subordinate acts as are merely incident or are necessary to effectuate the principal act in the best and most beneficial manner, it is necessary, even in regard to a special agent, if it be intended to exclude from his authority any circumstance which would otherwise fall within it, that it should be done by express direction. And in Finn v. Harrison, before cited, it was held that where a special agent was employed to negotiate a bill of exchange, and no express directions were given him not to indorse it, that the principal was bound by his indorsement. And in the cases cited where it is stated that, a special agent cannot bind his employer by a warranty in the sale of a horse, it is with this qualification, that he is expressly directed nut to warrant; and if he give no directions respecting the warranty, he is bound by the warranty of the agent. Helyear v. Hawke, 5 Esp. 75; Rungeint v. Ditchell, 3 Esp. 65; Alexander v. Gibson, 2 Camp. 555. Barnard having authority to sell the horse, and there being no evidence that he was directed not to warrant, the court were justified in holding that the power to sell gave him -the right to warrant. And if the principal would avoid the warranty made by Barnard, it was incumbent on him to show that in authorizing Barnard to sell the horse, he directed him not to warrant him. Barnard having authority to make the warranty, his admissions and declarations which had a tendency to prove that he made the warranty, were admissible, and the testimony of Rolfe was admissible for that purpose. The declarations testified to by him were made by Barnard while he and the plaintiff were talking about the trade, and it is not necessary to the admissibility of such evidence, that the declarations should have been made at the time when the trade was consummated. If made while the negotiaton is proceeding, and with the intention and expectation upon the part of the party making them that the party to whom they are made will rely upon them, and he does rely upon them, they are admissible. The exception taken to the reproduction of the testimony of the deceased witness Scott, cannot be sustained. The objection was a general one, and was to the competency of the evidence. The [390] only reason urged why the evidence should have been excluded is, because the defendant had no opportunity to cross-examine Scott. It is not claimed but that the defendant had legal notice of the commencement and pendency of the suit; and not appearing, he was defaulted, and the damages were assessed by the clerk under the rules of court, and it was the evidence of Scott which.was given before the clerk upon such assessment, that was reproduced. The damages were assessed in the manner provided by s. 48, c. 30, of the Gen. Sts., and the rule of court referred to provides that the clerk shall assess all damages on judgments by default, unless otherwise ordered, giving reasonable notice when requested. The notice given to the defendant was all the notice that the law required, and gave him opportunity to appearand contest all questions that might be litigated, until the final completion of the judgment. The assessment of the damages was a judicial proceeding between the same parties, and the defendant had the same opportunity to cross-examine witnesses used before the clerk as he would have had if the damages had been assessed by the court. The rule admitting the reproduction of the testimony of a deceased witness, requires that the testimony reproduced should have been pertinent to the issue on trial at the time the witness testified, and hence if objection had been seasonably made to some portion of the testimony reproduced, it would doubtless have been excluded. , But no such objection having been made in the County Court, it cannot be made here. Judgment affirmed.