Tague v. John Caplice Co.

ME. JUSTICE HOLLOWAY, after stating the case, delivered the opinion of the court. Upon the trial the plaintiff offered in evidence a complaint in an action commenced by the defendant herein, the John Caplice Company, against Fannie Nelson, in the district court of Silver Bow county, on May 18, 1896, in which complaint the John Caplice Company claimed to be the owner of the wood business at Bernice, Jefferson county, Montana, which complaint contains copies of two contracts purporting to' have been executed between the John Caplice Company and Hiram Nelson with reference to the wood business, at Bernice. The complaint further claimed that the defendant, Fannie Nelson, was attempting to assert ownership, to the wood and to dispose of it, and asked that by a decree of the district court the John Caplice. Company be declared to be the owner and entitled to. the possession of such wood. This complaint was verified by the secJ retary of the company. This evidence was objected to as immaterial and incompetent, and upon the ground that the contracts set out in the complaint show that their execution by the officers of this defendant company were acts ultra wires. The objection was overruled, and error is now assigned. We think the evidence was properly admitted. It is a well-settled rule that declarations or admissions of a party made in pleadings are admissible against him in another action in behalf of a stranger to the action in which such pleadings were filed, if they were verified by the party or prepared under his instructions. (Pope v. Allis, 115 U. S. 363, 6 Sup Ct. 69, 29 — 59 — L. Ed. 393; Hyman v. Wheeler (C. C.), 29 Fed. 347; St. Louis Mutual Life Ins. Co. v. Cravens, 69 Mo. 72; Elliott v. Hayden, 104 Mass. 180.) Tbe contracts referred to' in tbe complaint were made with reference to tbe wood business at Bernice, one dated December 10, 1894, and tbe other dated April 6, 1895, wbicb referred to tbe same subject-matter, and purported to modify somewhat tbe terms of tbe prior contract. Tbe order of proof may have been somewhat irregular, but in view of tbe fact that plaintiff immediately offered in evidence tbe articles of incorporation of the John Caplice Company, which, among other things, provided that tbe objects for wbicb tbe corporation was organized were “to buy and sell wood and lumber and building material of whatever kind, to' establish, conduct and carry on the business of cutting', buying and selling and manufacturing cord wood,” etc., and further offered in evidence tbe minutes of the meeting of tbe stockholders of such corporation showing tbe election of officers, and wbicb minutes contain this recital: “It was moved by John Branagan that tbe contract dated tbe 10th day of December, 1894, made between tbe John Caplice Company, a corporation, party of the first part, and Hiram Nelson, party of tbe second part, be approved and ratified. Tbe motion was seconded by Arthur H. Wethey, and was carried unanimously” — which minutes were signed and attested by tbe president and secretary of tbe corporation — we cannot say that tbe district court, erred in its ruling. Tbe plaintiff also offered in evidence a contract between tbe John Caplice Company and Hiram and Fannie Nelson, dated July 8, 1896, wbicb provided for the compromising of certain lawsuits, and which contract further contained tbe provision that the Jobn Caplice Company was at that date the owner of tbe wood business at Bernice, and further provided for tbe disposition of tbe wood. This contract recited that tbe John Cap-lice Company made tbe contract, and caused it to be executed by its president and secretary, by whom it was signed, and to wbicb tbe corporate seal was attached. To this offer tbe defendant company objected on the ground “that it does not appear — 60 — that the party executing this contract as. president of the John "Caplice Company had any authority to do so.” This objection was overruled and exception taken, and it is now urged that the •district court erred in permitting this evidence to go to the jury. We think there is no merit in the contention. The record of the proceedings of the organization of the corporation, the election of its officers, the adoption of its corporate seal, a copy of its articles of incorporation, and evidence that the company1 was actually engaged in the wood business at Bernice', had all been introduced, and the contract was signed by the executive officers designated by the trustees of that company and attested by the corporate seal, and, in the absence of any proof to the contrary, the executive officers of a corporation executing contracts in the name and on behalf of the corporation with reference to business comprehended in the articles of incorporation, and in which it is shown that the corporation was actually engaged at the time of the execution of such contracts, will be presumed to have full authority to bind the corporation by such acts, and by the declarations and admissions contained in the contracts themselves. (4 Thompson on Corporations, Sec. 5106.) Objection was made to all of this documentary evidence on the ground that it was immaterial, and, soi far as this objection is concerned, we may say that we are of the opinion that the plaintiff assumed a burden which it was not necessary for him to do. At the beginning of the proceedings the defendant had asserted in an affirmative defense that the wood business at Bernice was carried on by the plaintiff herein and one John Caplice, and it was not necessary for the plaintiff to .offer evidence to ■dispute that, or to show that as a matter of fact such wood business was actually carried on by the John Caplice Company, until after the defendant'company had offered some evidence in support of such affirmative defense; in other1 words, this evidence was propeady rebuttal, but it was directed to' an, issue fairly raised by the pleadings, and no possible harm could have been suffered by the defendant by reason of the fact that the plaintiff was assuming the burden, in the first instance, of dis — 61 — proving an affirmative defense' contained in tbe defendant’s answer by evidence which would have been perfectly proper in rebuttal. If there wias error at all, it was in the order of proof, and entirely without prejudice. During the progress of the trial, in a colloquy between the court and counsel, the court made use of certain language in the presence of the jury, to> which the defendant took exception, and it is now urged that this was prejudicial error. . If error, it was because of an irregularity in the proceedings of the court, or an abuse of its discretion, as specified in Section 1171 of the-Code of Civil Procedure, and such error can only be saved and brought into the record on appeal to this court by affidavit. (Section 1172, Code of Civil Procedure; Coleman v. Perry, 28 Mont. 1, 72 Pac. 42.) This was not done, and the alleged error is not, therefore, before us. TJpon the examination of the witness Corbett for the defendant, this question was asked: “Did you ever have any conversation with Mr. Caplice, or hear Mk*. Caplice have any conversation, regarding this wood business that is in litigation in this case, at any time?” An objection to the question was sustained, and error is now predicated upon such ruling. No offer to prove the facts sought to be elicited by the question was made, the excluded evidence is nqt before us, neither is it apparent from the question itself, and it is therefore impossible for this court to say whether there wias error in the ruling of the trial court. An offer was made by defendant to’ prove the substance of a conversation had between Mr. Heslet, the then president of the defendant company, and the plaintiff to this action, and, had' the proper foundation been laid, the evidence would have been admissible and material, as tending to contradict the plaintiff’s theory of the case, and possibly discredit the plaintiff himself; but it was clearly impeaching evidence, and the offer did not fix the time when the alleged conversation occurred or designate the persons who were present at the time, neither was the stater ment contained in the offer related to’ the plaintiff when he was62 on tbe witness stand, and tbe proffered testimony was therefore properly excluded. (Section 3380, Code of Civil Procedure; State v. O’Brien, 18 Mont. 1, 43 Pac., 1091, 44 Pac. 399.) When tbe defendant came to offer its. proof, and attempted to introduce in evidence the affidavit containing tbe testimony to which it was admitted tbe absent witnesses J. Noss Clark and J. K. Heslet would testify, objections were made to certain portions of that testimony, and by the court-sustained. The de¡-fendamt now claims that this was error, and that it was misled by tbe ruling of tbe court in first denying its motion for continuance upon the ground that tbe plaintiff bad admitted that tbe witnesses, if present, would testify to- those facts, and then ex-cluding certain of tbe facts. Upon this we may say that an admission, upon tbe part of one party, that witnesses for the other, if present, would offer to testify to certain- facts, does not admit tbe competency, relevancy, or materiality of tbe evidence, or preclude the party making the admission from objecting to any portions of the testimony to be offered upon any of those grounds. This is clearly the meaning of Section 1039 of tbe Code of Civil Procedure. If tbe absent witnesses bad been present, tbe plaintiff would have bad tbe undoubted right to1 make such -objection, and tbe court to sustain it, so that tbe der fendant was in no worse position than be would have been bad bis witnesses been in court. However, tbe evidence excluded is not embraced in tbe statement on motion for new trial, and not before this court at all. It is therefore impossible for us to' say whether or not tbe testimony sugbt to be adduced, but excluded, ■sbo-uld have been admitted. Tbe defendant offered in evidence tbe eight notes which bad been taken from Hiram Nelson, four of which were made payable to tbe John Caplice Company and four made payable to tbe plaintiff, Tague; by direction of J. Boss Clark, a trustee of tbe defendanat company. Upon objection they were excluded. There is absolutely no evidence in the record tending to show that tbe plaintiff, Tague, bad any knowledge whatever of what use was being made of bis money after it was delivered to tbe — 63 — defendant. There ia no evidence in the record whatever that he had ever authorized the defendant to loan his money to and take -therefor the notes of third parties, or that he had ever agreed to accept such notes in payment for the money loaned by him; and neither at the time these notes were offered in evidence, nor at any other time during the course of the trial, was any attempt made to show that the plaintiff had ever agreed to take these notes,- or any of them, further than the mere fact that when plaintiff had directed John Oaplice, who had possession of certain papers belonging to T'ague, to turn over to his attorney, W. W. Dixon, all of his (Tague’s) papers, Oaplice had, among others, delivered to Mi*. Dixon these notes, and they had been retained by him until the time of the trial. Complaint is made that the court invaded the province of the jury in instructing them that no. evidence had been offered proving, or tending to prove, the existence of any copartnership or association between the plaintiff, T'ague, and John Oaplice in the wood business at Bernice, or that proved, or tended to prove, that the plaintiff had ever accepted the Nelson notes in satisfaction for the money which he had delivered to this defendant. While it is true that the jury are the sole judges- of the facts in the case, and to them, should-be submitted for their determination every issue of fact upon which there is any substantial evidence; it is the duty of the court, when no- testimony whatever has befen offered upon an issue raised by the pleadings-, to withdraw it from the jury, and not -permit them, by mere surmises, conjectures, or speculations) to- determine such an issue by: their verdict. (Campbell v. Metcalf, 1 Mont. 378; Sweeney v. Darcy, 21 Mont. 188, 53 Pac. 540.) The only question before the court and jury for determination upo-n the pleadings and the evidence in this case was- whether or not the plaintiff’s money had actually been loaned to the defendant company, and that issue was fairly submitted, upon proper instructions, to the jury, and determined in the plaintiff’s favor. We have carefully examined the other errors assigned by the — 64 — defendant, but find no1 merit in them. The evidence is amply sufficient to support the judgment, and, no error appearing in the record, the judgment and order appealed from are affirmed. Affirmed.