Moyers v. Fogarty

Weaver, J. — The plaintiff’s alleged causes of action are stated in eight separate counts of his petition which are, in substance, as follows: Count 1 declares upon a written contract or order, dated June 2, .1898, alleged to have been made between him and D. J. Fogarty acting by an agent for the purchase of fifty-three apple trees, and some minor items of other trees and plants. Count 2 declares upon a similar contract dated June 16, 1898, for the purchase of one thousand apple trees. Count 3 is upon a similar contract dated January 20, 1900, for the purchase of four thousand cherry trees. Count 4 is upon a similar contract dated March 2, 1900, for the purchase of four hundred and seventy. cherry trees. Count 5 is upon another similar contract, dated March 14, 1900, for the purchase of one thousand five hundred and thirty cherry trees. Count 6 is upon another similar contract dated May 14, 1900, for the purchase of one hundred • and twenty-six apple trees and four' hundred plum trees. Count 7 is upon still another similar contract, dated May 24, 1900, for the purchase of one thousand three hundred and sixty apple trees and one thousand six hundred plum trees. Count 8 is based upon an open account for work and labor alleged to have been done at the instance and request of said Fogarty. The written contracts mentioned in counts 1 and 2 state the name of the seller to be J. R. Rice, and are signed “J. R. Rice, by W. J. Hoey.” The contracts [704] mentioned in counts 3, 4 and 5 also give the name of J. E. Eice as seller, and are signed “J. E. Eice, by A. J. Dunigan.” The contracts mentioned in counts 6 and 7' name D. J. Fogarty as the seller, and are signed “D. J. Fogarty, by G. E. Guthrie.” It is alleged, however, that in each instance D. J. Fogarty, doing business under the name of the' Council Bluffs Nursery Company or the Council Bluffs Nurseries, was the real party in interest in making the sale, and that Hoey, Dunigan and Guthrie were acting as his agents or representatives therein. It is also alleged that J. E. Eice had formerly been the owner of said nursery business, and that Fogarty, having become the purchaser thereof, claimed and represented that he also had the right to use the name of said Eice, and did in fact so use it, instead of his own individual name, in some of the transactions above referred to. Each contract contains a clause in these words: “Substitution to be made if absolutely necessary.” The contract of June 16, 1898, bears an indorsement as follows: “All trees replaced free of cost for five years.” Signed “W. J. Hoey.” The contract dated January 20, 1900, has indorsed upon it the following: “I agree to plant this bill of trees in the spring of 1900, and replace all trees that die for five years. Two thousand Dyehouse, two thousand Osthine Eussian. This order is subject to change of varieties and number of trees of two or three hundred either more or less to plant the piece of ground intended for them. This bill to be settled by bankable note one year at a time for three or five years if necessary at six percent interest. A. J. Dunigan.” The contract of March 14, 1900, has the following indorsement: “One thousand Dye House. Five hundred and thirty Osthein Eussian. Twenty-five E. Ohio. Twenty-five Mores Early. Twenty-five Worden. I am to replace all trees for five years. A. J. Dunigan.” The contract of May 26, 1900, bears the following: “All stock sold to J. A. Moyers is to be planted [705] by the first party. This order is sold on time.” Signed “George E. Guthrie.” The plaintiff further alleges that at the time each of said sales were made or orders given the said Eogarty by his said agents undertook and agreed to replace in his orchard all trees received under said orders which failed to live and thrive at any time during the period of five years, and that on May 26, 1900, and as a part of the same transaction in which the order mentioned in the seventh count of the petition was given, the said Eogarty, acting by his agent, entered into a written agreement for the replacement of all nursery stock then sold, or theretofore sold, to said plaintiff for the period of five years without further charge, and set forth in the following writing which is known and mentioned in the record as “Exhibit Z”: “Exhibit Z. May 26, 1900. This is to certify that we the undersigned nursery men of Council Bluffs, Iowa, do hereby agree to replace all nursery stock for J. A. Moyers, of Boone, Iowa, that said J. A. Moyers purchased of the Council Bluffs Nursery for a period of five years (5 years) free of charge, and the above agreement holds good for any nursery stock that J. A. Moyers may purchase of said Council Bluffs Nursery, and said J. A. Moyers will not allow his live stock such as cattle and horses to run at large among said nursery stock and in witness thereof we attach our respective names. [Signed] J. A. Moyers, D. J. Eogarty, G. E. Guthrie.” lie further alleges that, of the trees so ordered and purchased by him, much the greater part failed to grow, or were lost during the period of five years covered by said agreement, but that said Eogarty, though often requested so to do, failed and neglected to replace the same, and judgment is asked against him for the damages so resulting. Since the beginning of this action D. J. Eogarty has died, and the administratrix of his estate, Katherine V. Fogarty has been substituted as defendant. Answering the [706] petition, the defendant denies the same; denies that Fogarty was in any manner a party to the alleged transactions; denies that any of the persons so dealing with plaintiff were agents of said Fogarty, or authorized to represent him in any manner by their contracts. She specifically denies that said Fogarty ever executed the contract Exhibit Z, or authorized anyone to enter into the same, or to subscribe his name thereto. On these issues the jury was impaneled, and trial proceeded, closing with a directed verdict and judgment for defendant. It is evident that under the issues tendered by the answer it became a matter of first importance to the appellant to produce, if he could, evidence tending to establish Fogarty’s connection Avith the several contracts in suit, as well as the authority of the several alleged agents to represent him in said transactions, and to this end much testimony was offered upon the trial. Many exceptions have been preserved to the rulings of the trial court upon these offers. The bearing of the testimony and of the rulings thereon can be better understood if we first mention the facts which are conceded and some of the contested allegations of the petition, of which there is competent evidence. It is shown, without substantial controversy, that for a period of years prior to December, 1899, J. R. Rice, doing business as the Council Bluffs Nursery Company or the Council Bluffs Nurseries, was a wholesale and retail dealer in nursery stock at Council Bluffs, loAva. His sales were quite largely to dealers who, by themselves and their agents, sold the stock at retail. .Prior to the date last mentioned Fogarty Avas purchasing quantities of trees from Rice and retailing them, in which business he employed agents. Though denied in the pleadings, it is conceded in argument that W. J. Hoey was one of these agents in the service of Fogarty, and there is evidence tending to shoAV that A. J. Dunigan acted in like capacity. It is also conceded that said Hoey is the person who took [707] the orders or contracts in the name of Rice, as mentioned in counts 1 and 2 of the petition, and that in so doing he was acting as agent of Fogarty who received and filled the said orders and collected payment therefor. It is further conceded in argument, and was conceded upon the trial, that G. E. Guthrie, who took the orders mentioned in counts 6 and 7 of the petition, was the agent of Fogarty, and authorized to take the same, but his authority to exe-. cute Exhibit Z or subscribe Fogarty’s name thereto is contested. In December, 1899, Rice sold the business and the right to use the business name to Fogarty. There is evidence tending to show that at the time of said sales to plaintiff Hoey and others of his agents had been supplied by Fogarty with rubber stamps to affix the name of Rice to tree contracts, but Rice testifies that this was done without his knowledge or authority. Dunigan appears to have used such a stamp in taking the contracts mentioned in counts 3, 4 and 5 of the petition. Guthrie, the admitted agent of Fogarty, had and used a rubber stamp in affixing the signature of the latter to the' contracts mentioned in counts 6 and 7. Other pertinent facts will be mentioned in the further progress of this opinion. Broadly speaking, it may be said that, when we have taken account of the matters alleged and the matters admitted, the controversy narrows itself around these two propositions: First, whether Fogarty was in any manner responsible to plaintiff upon the orders and contracts taken by Dunigan, and mentioned in counts 3, 4 and 5 of the petition; and, second, whether the alleged agreement to replace trees for the period of five years, and especially the agreement embodied in Exhibit Z, were made by Fogarty or by any other person having authority to make such contract in his name. [708] i. Principal and agent: authority of agent: evidence. [707] I. As will be noticed, the contracts taken by Dunigan under date of January 20, 1900, March 2, 1900, March 14, 1900, provided for the sale to the plaintiff of [708] number of six thousand cherry trees. It apthe aggregate pears that the first of these orders contemplated a supply sufficient to plant a given field owned by plaintiff, but by reason of mistakes in the estimate, or a conclusion to lessen the space between the planted trees, the number was thereafter increased by the two later orders, enlarging the number from four thousand to six thousand and that the three orders constitute, in effect, one transaction. It is insisted by appellee that there is no competent evidence tending to show that Fogarty was the principal in said sales, or that Dunigan was in any way representing him therein, or that he is in any manner liable to the plaintiff for Dunigan’s failure, if any, to perform his part of the agreement. At the risk of some repetition we collate a few of the reasons appearing of record why we think this question should have been submitted to the jury under proper instructions. There was evidence tending to show that Dunigan had prior to this time been the agent of Fogarty in this line of business. There was also evidence from which the jury could find that, a few days before the first of the cherry tree orders was given, Mr. Fogarty in person, with Dunigan and Guthrie, appeared at the plaintiff’s home in Boone County, where they together sought to secure his order for cherry trees with which to plant a so-called commercial ' orchard. In this negotiation Fogarty coupled Dtmigan’s name with his own, and solicited plaintiff to purchase from them, but, the price demanded not being satisfactory to plaintiff, the parties separated without closing a deal. Later Dunigan reappeared, saying that Fogarty and he were now prepared to reduce the price, and upon this basis an agreement was reached and the trees ordered. The contracts, though nominally made with J. R. Bice, as was done with the prior apple tree orders, and having his name subscribed thereto by Dunigan, were confessedly made after Bice had sold the business to Fogarty, [709] and there is no pretense that Rice had anything to do with the transaction. Fogarty had on other occasions authorized or ratified the practice of using Rice’s name in tree contracts and affixing Rice’s name thereto by the use of rubber stamps. A witness in the employ of Fogarty at that time swears that Fogarty exhibited these cherry tree contracts, or some of them, to him, saying he had sold another large order to Moyers, and directed him to pack the trees for shipment. Indeed, we do not understand defendant to contend that the trees to fill these orders were not furnished by Fogarty, but the contention is that if so furnished it was in the nature of a sale to Dunigan to enable him to fill his personal contract with appellant. Each of the cherry tree orders contains the sentence “Address all communications to lock box 13, Council Bluffs, Iowa,” and subsequent correspondence with Fogarty indicates that this was the number of his post office box. Fogarty and Dunigan discussed their business relations with or in the presence of the witness Benjamin, Avho says that it was to the effect that' Fogarty furnished the stock, and Dunigan went out and made the sales, the profits being divided between them. Other matters having the same general tendency might be added, but enough has been mentioned to demonstrate that, Avhile some of the incidents standing alone would be of but slight significance, yet taken together they make up a quite formidable array of evidence, from which the jury could Avell find that Dunigan in these transactions Avas" the agent and representative of Fogarty. 2. Same II. We next give attention to the writing Exhibit Z. Standing alone, this instrument is someAvhat ambiguous and incomplete; but, when taken into consideration with the story of the dealings theretofore had between the appellant and the various representatives of the Council Bluffs Nurseries, its effect is quite clearly revealed. Looking only to its date, May 26, 1900, this writing would appear to haA^e been made in the [710] interim between the last two sales to the appellant, under the contracts dated May 14, 1900, and May 29, 1900, as set out in counts 6 and T of the petition. The appellant’s testimony is to the effect that the making of said exhibit and the last-mentioned tree purchase were parts of one and the same transaction. As will'be remembered the sales of May 24th and May 29th were both negotiated by G. E. Guthrie, as the agent of Fogarty, and that the authority of said agent to represent Fogarty therein is'conceded by counsel. The written memorandum of sale was in each instance subscribed by Guthrie with Fogarty’s name, using a rubber stamp for that purpose. Exhibit Z was executed in the same manner, and by the same person; and, if appellant’s testimony is to be believed, and it must be taken as true for the purposes of this appeal, it was made at the same time, and as a part of the same transaction, by which the last bill of trees was sold to him. On being offered in evidence by the' appellant this exhibit was objected to by the appellee because the paper appeared not to have been signed by Fogarty, but by Guthrie, and Guthrie’s authority in the premises had not been sufficiently shown. It was further objected that there-is no presumption that a traveling salesman has' authority to make such contracts. It is conceded that the agent may bind his principal by “certain reasonable contracts” with respect to sales which he makes, but that Exhibit Z is clearly in excess of such implied powers. The objection was sustained, and the exhibit excluded. We think it should have been admitted. As already suggested, Guthrie was admittedly' Fogarty’s agent to make the contracts of sale, and it is by no means certain that his authority was strictly limited to the making of sales. The authorized contract of May 29, 1900, in connection with which it is claimed Exhibit Z was executed, is more than a mere contract of sale. It binds Fogarty, not only to' sell the trees, but to plant them out. The contract made by Hoey with plaintiff, as shown [711] in the second count of the petition, obligates Fogarty to replace trees, free of cost, for five years. Fogarty is shown to have recognized the authority of his agents in this respect by shipping some trees to replace losses, and on at least one occasion offered to replace others as soon as he could ascertain how many were required. From these and other circumstances disclosed in evidence the inference may fairly be drawn that Guthrie’s agency was of a somewhat general character, and whether the making of Exhibit Z was under all the circumstances fairly within the scope of his apparent authority was a jury question. „ .. 3. Same: ratifi“erfs°contract" Moreover, if, as plaintiff’s evidence tends to show, the giving of the order of May 29, 1900, and the execution of Exhibit Z were a part of one and the same transaction, then neither Fogarty nor his administratrix could be heard to affirm the validity and binding force of one part of the deal and repudiate the other. Mr. Fogarty did recognize the sale made to Guthrie, and availed himself of the advantages and profits arising therefrom, and in so doing he must be held to have assumed its burdens as well. He could not have affirmed the transaction so far as it was profitable to him, and be allowed now’ to disaffirm the remainder. Eadie v. Ashbaugh, 44 Iowa, 519; Farrar v. Peterson, 52 Iowa, 420; Bank v. McCorkell, 91 Iowa, 660. For the application of this rule it is not necessary to show that the principal, who takes advantage of an unauthorized contract by his agent, had knowledge of all the terms and conditions entering into it. Refrigerator Co. v. Vinton, 79 Iowa, 243; Hollingsworth v. Holbrook, 80 Iowa, 156; Lull v. Bank, 110 Iowa, 537; Dodge v. Tullock, 110 Mich. 480 (68 N. W. 239); Elwell v. Chamberlin, 31 N. Y. 611. Without further discussion in this direction we hold that the claim made by the appellant upon the agreement Exhibit Z should have been submitted to the jury. [712] competency of evidence. [711] III. Of exceptions to rulings upon offers of evidence [712] we may note the following. One Harris, a' witness for the appellant, having shown that he was employed by Fogarty in and about the fruit tree business during all of the time covered by the transac- . . tions m controversy, and was" also then acquainted with Dunigan, the alleged agent, who took the cherry tree orders, was asked for whom Dunigan was at work during the time covered by said sales, but objection by defendant that the matter called for by the question was a mere opinion or conclusion of the witness was sustained, and the answer excluded. The evidence was competent, and the objection should have been overruled. While the answer called for may partake somewhat of the nature of a conclusion, it so far partakes of fact that the witness speaking- from personal knowledge and acquaintance is qualified to testify upon the subject. If, for instance, I see my neighbor in daily charge of a street car on which I ride, see him performing the ordinary duties of a conductor, and wearing the uniform appropriate to that position, it would be an exceedingly strange application of the rules of evidence which would exclude my testimony that he is an employe of the street railway company. Is not the factory hand a competent witness to the fact that the workman by his side is a servant of the same employer with himself, though he has not seen or heard the contract of employment? May not the traveling salesman, long in the service of an employer, know to a moral certainty that another named person is engaged in the same service with him, though he is not a witness to the hiring and knows nothing of its terms? The rule which excludes testimony as to mere conclusions is both safe and salutary within its proper limitations; but if carried to an extreme of literal interpretation it would put the ban of incompetency upon all testimony, for every assertion of fact given by an alleged eyewitness is but the assertion of a conclusion drawn by him from the evidence of his senses, which may them [713] selves be defective and create in his mind misleading impressions. Absolute knowledge is not, and never has been, the test of a witness’ qualifications to speak upon a given subject. 1 Wigmore’s Evidence, section 550. And this is peculiarly true when he is asked to speak of the position or occupation of another person of his acquaintance, or of the relation which that person bears to another. Having shown his personal acquaintance and opportunities of observation, there is no rule of evidence which disqualifies him from testifying that A. is the son of B., or C. is the clerk in the store of D., or that E. is a policeman of the city of his residence, or that E. is the cashier of a named bank. The record tends to show that Harris had been for several years in the employ of Fogarty, serving some of the time as traveling salesman, and some of the time in and about the headquarters of the business in Council Bluffs, thus having good opportunity to know who were his fellow employes and agents; and, to the extent of the knowledge thus obtained, he should have been permitted to testify. 5' DENCE^pjpiicaTestimony was also offered to the effect that, while several of the tree orders were taken in the name of J. R. Rice, they were in fact taken by Fogarty’s agents for his benefit, and were filled by him, but upon objection that this was an attempt to vary a written contract by parol evidence it was excluded. The objection should have been overruled. The rule against parol testimony has no application to such state of facts. The evidence offered has no tendency to vary any term or condition of the contract. Its effect, if any, is one of identification. A. party can not escape the' obligation of a contract by doing business in an assumed name, or by the unauthorized use, or mistaken use, of the name of another person, and then invoke the aid of a rule of evidence to exclude proof of his. real relation to the transaction. Directly in point is Simmons v. Marshall, 3 G. Greene, 502 (Iowa). See, also, 17 Cyc. 709, 710, [714] If, for instance, it should be a fact that, while Rice was proprietor of the business he had quantities of printed order blanks directed to himself for the úse of his agents, and upon the sale of the business such supplies passed into the hands of Fogarty, and the agents of the latter in making use of them had negligently or inadvertently failed to substitute Fogarty’s name therein, but the orders so taken had been delivered to him and filled by him according to the real intent of the parties, we think it very clear that the rule against parol evidence would not be applied to exclude proof of that fact. Or let us suppose that at the time Rice sold the business, his agents, supplied with his blanks and stamps, were out canvassing for orders, and that, without knowledge of the change in proprietorship, they continued-for some time to take such orders'in the same form, but on turning them in at the home office the new proprietor, as he lawfully might do, should receive and treat them as orders directed. to himself, we think there is no rale of law which will prevent those who have given such orders from proving the fact and enforcing the contract against him who is the real party in interest. If this be a correct assumption, then for still stronger and more obvious reasons will the rule forbidding parol testimony not be applied for the protection of one who, for reasons of his own, does business or enters into contracts under the name of another. 6' Client?* and múnications?”1" proof.11 °f Fremont Benjamin, an attorney at law, was called as a witness for appellant, and asked to state what Fogarty had said to him respecting the relations between himself and Dunigan, the alleged agent who took the cherry tree orders, but. an objection thereto, on the ground that the communication called for was one received by the witness in professional confidence, was sustained. The showing on which this objection was grounded was substantially as follows: Benjamin, while holding no general retainer from Fogar [715] ty, had been frequently employed by him. In the year 1902 Harris sought to employ Benjamin to bring an action against Dunigan, and Benjamin not desiring to take the case if Fogarty was adversely interested, asked the latter as to the relation between him and Dunigan. It was the information thus received which the trial court excluded. That which the statute protects is a confidential communication of a client to his attorney. There is here no suggestion that the information thus given was of such confidential nature. While Benjamin had «been the attorney for Fogarty in numerous matters, and possibly was at that time his attorney in others still pending, the record shows that he was not retained generally by Fogarty to act for him in all matters, but that the several cases taken by him represented several employments, and according to the attorney’s explanation his reason for seeking the information was because he did not wish - to sue one who was his client, even though he might have the legal right so to do. He was not employed or consulted by Fogarty with respect to the case of Harris v. Dunigan. There was nothing whatever to indicate that the information thus imparted had any reference to any other matter in which Benjamin had been, or was then, counsel for Fogarty, and the mere fact that Benjamin and Fogarty held the relation of attorney and client with reference to other -isolated cases would not make the statute applicable to all their conversations and communications. Looking at the record before us, we think it clear that the relation of attorney and client did not exist, or at least is not shown to have existed, between these parties with reference to the matters then under consideration, and it does not appear that the conversation related in any degree to the rights or interest of Fogarty in other matters in which Benjamin was acting as his attorney. As bearing out the view of the law we have here expressed, see State v. Mewherter, 46 Iowa, 88; Reinhart v. Johnson, 62 Iowa, 155; Carroll v. Sprague, [716] 59 Cal. 655; Lynde v. McGregor, 95 Mass. 172; Hatton v. Robinson, 31 Mass. 416 (25 Am. Dec. 415); Granger v. Warrington, 8 Ill. 308; Romberg v. Hughes, 18 Neb. 579 (26 N. W. 351); Flack v. Neill, 26 Tex. 273; Earle v. Grout, 46 Vt. 113; Wilson v. Godlove, 34 Mo. 337. In the Granger case, supra, the Illinois court states the rule thus: “The relation of client and attorney must exist. The party must consult the attorney in a matter in which his private interest is concerned and make his statements to him «with a view to enable the attorney correctly to understand his cause, so he may manage it with greater skill, or, if legal advice only is wanted, to enable ■the attorney the better to counsel him as to his legal rights.” Under no construction of this rule can it be said that the evidence excluded in this case was privileged. It should also be remembered, where the objection of privilege is raised and, the record already made does not clearly disclose the alleged confidential relation, the burden is upon the objector to show it. It is not for the interrogator or witness to negative it. Mowell v. Van Buren, 77 Hun, 569, [28 N. Y. Supp. 1035], This not having b.een done, the objection to the testimony should have been overruled. Other objections to testimony, were sustained, and exceptions preserved where the matter ruled out was subsequently admitted, and the error, if any, in such rulings was thereby cured. What we have already said will serve as a sufficient guide with respect to this testimony in the event of retrial. 7' Amendment: discretion. IV. When nearing the close of the trial plaintiff offered an amendment to his petition, alleging a conspiracy between Fogarty, Dunigan and Hoey to defraud him by the sale of worthless trees, but upon objection by the defendant the court refused to permit the amendment. In view oí the fact that the proposed amendment would effect a radical change in the issues, and was offered so late in the progress [717] of the ease, the court did not abuse its discretion in the ruling complained of. 8. pleadings: rep!y‘ At about the same time the plaintiff filed a reply to the defendant’s answer, alleging that Fogarty had supplied Dunigan and Guthrie with rubber stamps to be used in attaching the name of Nice and of Fogarty to tree contracts, and had ratified the acts of said agents in taking said orders from the appellant, and had acted upon the same as if directed to him, whereby he and his administratrix are estopped to deny or repudiate the authority of said agents in the premises. This reply was upon motion of the defendant stricken from the files. In this there was error, unless we say, as possibly we might, that all of the matter so pleaded was provable under the issues already joined. But in any event the reply alleged nothing in support of which there was not some evidence, and served only to make the pleadings conform to the proof offered, and to the theory upon which the trial had apparently been conducted. Because of the errors hereinbefore pointed out a new trial must be ordered. 9* cost' In disposing of the matter of costs we may say that objection is raised to appellant’s brief because of its failure to conform with our rules covering the preparation of such documents. While we have not thought it is so defective as to justify us in striking it, we must say that it evinces a carelessness in preparation which we can not approve- For instance, counsel relies upon very numerous alleged errors of the trial court in sustaining or overruling objections to the testimony of witnesses, but in each instance no reference to the record is given, except by stating the name of the witness, without noting the page or line of the abstract. Again, while printing marginal numbers of the lines in his brief, where they are of comparatively little help, they are wholly omitted from the abstract, where, if made proper use of [718] by counsel in their briefs, they are of great assistance to the court. In view of -this fact the clerk will tax'no costs against appellee for the printing of appellant’s brief. Other costs will be paid by the appellee. For the reasons stated the judgment of the district court is reversed.