Banister v. Ovitt

The opinion of the court was delivered by ROWELL, J. The court below found that Mrs. Hunt has a pecuniary interest in the event of this suit if her testimony and that of the defendant tended tó show such interest, and if it did, that she had such an interest as it tended to show. Their testimony tended to show that the hay in question was cut on Mrs. Hunt’s farm, stored in her barn, and belongs to her, and that the defendant fed it to her stock by her direction, supposing it to be hers. This makes her interested in the event of the suit; for he who employs another to do an act in respect of which the employe is innocent and which the employer appears to have a right to authorize him to do, is treated as undertaking to indemnify the employe therefor, if the act would have been lawful had the employer had the authority he claimed to have. Adamson v. Jarvis, 6 Bing. 66; Howe v. Buffalo, N. Y. & Erie R. R. Co., 37 N. Y. 297; Cooley on Torts, 144 et seq.; Story on Agency, s. 339; Cf. Emery v. Fowler, 39 Me. 326-63 Am Dec. 627. It is not necessary to determine whether a judgment against the defendant would be conclusive on Mrs. Hunt, it not appearing that she has been vouched in to defend ; for if not conclusive, her liability as indemnitor would remain nevertheless. Mrs. Hunt being a party in interest though not of record, her husband was not a competent witness. Labaree v. Wood, 54 Vt. 452. The cause of action in issue and on trial being' the conversion of the hay, the matter of giving the chattel mortgage on which [583] the plaintiff relied for title was collateral, and therefore the plaintiff was a competent witness notwithstanding the death of the mortgagor. Downs v. Belden, 16 Vt. 674. Judgment reversed a/nd cause remanded.