Larkin v. Carstens Packing Co.

Mr. Justice Harris delivered the opinion of the court. It will be observed that the answer notified the plaintiff that the company contended: (1) That Larkin had not contracted with the defendant an Oregon corporation, but that he had been employed by a Washington corporation having the same name as the defendant; and (2) that plaintiff had been paid for the services rendered by him during the employment. The bill of exceptions recites that Thomas Carstens was called as a witness for the defendant, for the purpose of showing that the contract of employment was made by Thomas Carstens for the Carstens Packing Company, a Washington corporation, and not for the defendant, an Oregon corporation. After relating certain negotiations and conversations with Larkin and stating that he was acting for “the Carstens Packing Company of Tacoma,” and that he knew “the Carstens Packing Company, the Oregon corporation,” the witness was not permitted to answer this question asked by defendant: “Did you at any time act for the Oregon corporation?” [106] 1. The rule which prohibits third persons from testifying to extrajudicial declarations made by the alleged agent before trial has no application to the instant controversy. Here an attempt was made to prove the nonexistence of agency in a single transaction. The right to prove a parol agency by testimony of the person who claims to be the agent is not even open to debate: Spande v. Western Life Indemnity Co., 61 Or. 220, 232 (117 Pac. 973, 122 Pac. 38); 10 Ency. Ev. 14; 31 Cyc. 1651; 1 Am. & Eng. Ency. of Law (2 ed.), 969; 2 C. J. 933, 935; 1 Mechem, Agency (2 ed.), § 291; Wicktorwitz v. Farmers’ and Merchants’ Ins. Co., 31 Or. 569, 575 (51 Pac. 75). The alleged agent is likewise available as a witness to testify to the nonexistence of an agency, and therefore, if Thomas Carstens was not acting for the Oregon corporation, it was competent for him to say so under the circumstances presented by the bill of exceptions and accompanying transcript of the testimony: 2 C. J. 935; Dowell v. Williams, 33 Kan. 319 (6 Pac. 600). If Carstens did not act for. the Oregon corporation, the company was entitled to have the witness give the information to the jury, because the testimony would have been material to the defense that the contract of employment had not been made with the defendant. The mere, fact that there were two corporations having the same name would not make the Oregon company liable for the debts of the "Washington corporation. The quoted question submitted to the witness might in some, and perhaps in most instances, be calling for a legal conclusion; but on the record made by the trial an answer in the negative would have been a statement of fact. 2. It was also error to refuse to permit Thomas Car-, stens to tell the jury that the defendant did not receive any of the cattle. It will not be necessary to dis [107] cuss any other questions, for the reason that a new trial will probably be kept free from, the remaining objections presented on this appeal. The judgment is reversed and the cause is” remanded . for a new trial. Reversed. Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Burnett concur.