Donaghey v. Williams

Wood, J., (after stating the facts). The pleadings raise two distinct issues of fact1st, whether of not appellant requested the appéllee to 'become his campaign manager, and, as such, to spend his own money in conducting the campaign for appellant With the promise on the part of the appellant to repay appellee the sums expended ;by him out of. his own funds; and, 2nd, whether or not appellant borrowed of appellee the sum of $2,500. I. While there is testimony to warrant a finding that appellant requested the appellee to become his campaign .manager, there is no testimony whatever, to warrant a finding that appellant requested the appellee to defray the expenses incident to the headquarters and the management of the campaign out of his own funds. On the contrary, the undisputed evidence is that the appellant himself was to pay the expenses of his headquarters and of conducting the campaign. The allegation of the complaint that appellant “desired the appellee to • come into Ms headquarters and handle the financial end of the campaign and to pay the debts and bills and the defendant would repay the plaintiff whatever the plaintiff paid out,” was sufficient to admit testimony on this issue, but the burden was on the appellee to prove this allegation, and he has failed. (1-2) The testimony -of the appellee, and of the witnesses who corroborate Mm concerning the understanding between appellee and appellant as to the expenses of the headquarters and the campaign shows that these expenses were to be paid by the appellant out of his own .funds, and not by the appellee. Giving the testimony inf avor .of the appellee on this point its strongest probative forcé, it does not justify an inference that appellant intended that appellee should pay the expenses out of Ms own funds. . Appellee himself testified that appellant said, “he would stand the expenses of headquarters; he had plenty of money and expected to win. He wanted me to take charge of the campaign and handle it as though it were my own business.” The testimony of other witnesses for appellee, who claimed, to liave heard what appellant said at this timé', was to the same effect. On this issue, the smt by appellee is to recover for money paid by appellee at appellant's request. To sus: tain a cause of action for money thus paid the previous request must be proved, or else it must be shown that the party for whose benefit the money was paid, ratified such payment after it was made. We have set forth the testimony as abstracted on this issue fully in the statement, and it fails to show any ratification whatever upon the part of appellant of the payments which appellee claims that he made in conducting appellant's campaign. On the contrary, the only affirmative evidence in the record is to the éffect that appellant repudiated these expenditures as soon as they were brought to his attention, and nowhere acquiesced in or gave his assent to them. Appellee therefore, in paying out his own money for the expenses which he claims were incurred 'by him in conducting appellant’s headquarters and campaign without any request upon the part of appellant'so to do, was a mere volunteer, and he cannot hold appellant liable for such payments. 27 Oye. 837 g. The utmost that the testimony on behalf of th,e appellee tends to prove is that appellant requested him to manage his campaign, and that appellant would defray the expenses. But this is quite a different thing from a request by appellant of the appellee to pay the expenses himself out of his own funds with a promise of repayment by the appellant. Appellee’s cause of action upon this issue must stand or fall upon the proof to the effect that the appellant specifically told the appellee to run the campaign as if it were his own 'business, and that he (appellant) would “foot the bill.” This falls far short of a request on the part of appellant of appellee for the latter to “foot the bills” out of his own funds. (3) The court therefore erred in submitting to the jury the issue as to whether or not appellee had either express or implied authority to spend his own money in behalf of appellant. Furthermore, even if appellee had proved that he had express or implied authority to spend his own money in conducting the headquarters and the campaign for appellant, the burden was upon the appellee to show the specific purposes for which the money was expended in order that it might be determined whether or not the money was spent for a legitimate purpose. Appellee kept no books and had no receipts or vouchers. Appellee testified that he knew the money he paid out was used in the campaign and for campaign purposes, but whether the parties to whom he paid it used it for that purpose he could not say. During the cross-examination of appellee, he was asked this question: “You would just pay out anything anybody told you to when you were in there and you found- them there?” and answered, “It seems so.” And he further testified that he could not remember the names of the persons to whom he- paid money nor what they did. He stated that he paid them for services, and when asked what these services were replied: “It was supposed services in the campaign.” (4) Now in order to justify a recovery on behalf of appellee against appellant it was incumbent upon appellee “to lay his finger” upon the specific services, that were rendered the appellant for which appellee expended his own money. Appellee. could not expend his own money for appellant for supposed services rendered in the interest of the latter in connection with 'his campaign. Appellee would have to show that the money expended was in good faith and for a particular service rendered which would have been a legitimate charge against appellant. A reckless, and indiscriminate expenditure of funds to anyone without inquiry as to the particular service rendered and without a showing that the service was a legitimate expense would tend to .debauchery of voters and the corruption of elections. A contract authorizing the expenditure of .money in this manner would be contrary to public policy and void. It is not necessary to discuss the instructions in detail. What we have said would sufficiently indicate Avhat the instructions should have been, and -shoAvs- that the cause, on this issue, Avas not correctly tried. (5) II. As independent evidence, the. checks and drafts introduced by the appellee made payable to himself to shoAv that he had paid out the various sums specified therein were but hearsay testimony and incompetent. 2nd. Jones on Evidence, see. 298, p. 640, and sec. 297, p. 630; 4 Chamberlaine on Evidence, see. 3088; Simons v. Steele, 82 App. Div. (N. Y.) 202, affirmed in 177 N. Y. 542. See also, 8 Ene. Ev. p. 626. Checks and drafts were draAvn by the appellee and many of them made payable to himself. On their face they do not show that appellant was in any manner connected therewith, and the evidence affirmatively shows that appellant was not present when the checks and drafts were draAvn. They related wholly to transactions with other persons. These checks and drafts were but in the nature of self-serving evidence by the appellee, tending to corroborate his testimony that he had paid out the various amounts testified to by him on account of appellant. It was not competent for appellee to corroborate his testimony in this way. See Hamburg Bank v. George, 92 Ark. 472; Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 173 S. W. 179. The cheeks and drafts made payable to third parties would be competent to show the fact of such payment and would be relevant and competent testimony provided appellee went further and proved that he had authority to issue them and that they were given in payment for legitimate services rendered appellant. It does not appear from the record that the checks, and drafts were used merely to refresh the memory of appellee when he was on the witness stand, but that he was allowed to use them as independent evidence to corroborate his testimony as to the amounts he claimed that he had paid at the instance and in the interest of the appellant. (6) III. The court erred in permitting the introduction of the letter written by W. T. McCauley to the appellee. The contents of this letter tended to show that appellant had authorized the writer to call on the appellee for money, and the purpose of the evidence was to show that appellee was correct in his contention that appellant had expressly authorized him to use his (appellee’s) own funds in furthering appellant’s campaign. Appellant was not present when this letter was written, and it was hearsay testimony. As we have seen, there was no testimony to show that appellee was authorized to spend his money in con-' ducting appellant’s campaign. This letter tended to prove such fact and was highly prejudicial to the appellant. If such facts existed they should have been testified to directly by the writer of the letter, and the letter, in no case, could be used to bolster up the testimony of the witness. IV. The court erred in excluding the proffered testimony of witness Frank Robbins. Appellant contends that appellee was procured as his campaign manager through his special agents for that purpose, Bullion and Frauenthal, and that these special agents were under limited authority to see that the campaign manager they selected did not expend of appellant’s funds exceeding the sum of $2,500; that these special agents were-,.instructed to limit the expenditures to that sum. The testimony of Robbins tended to prove that such were the instructions of appellant to his special agents, Bullion 'and Frauenthal. Robbins was the instrumentality through whom these instructions were communicated from the appellant to his special agents, Bullion and Frauenthal. The testimony of Bullion shows that he told appeb lee that “the appellant had left instructions to furnish him (appellee) $2,500, which was the limit of campaign expenses which Mr. Donaghey would pay, and asked him how he wanted the money furnished, which they agreed should be furnished in cash.” Appellee does not deny that Bullion communicated to him these instructions. (7) The law is well settled that where the scope of an agent’s authority depends in whole or in part upon the instructions of the principal such instructions may be given in evidence where they have been communicated to the third party, although they are opposed to. the apparent authority of the agent. See 31 Cyc. p. 1657, and cases cited. V. The issue as to whether or not appellee had loaned the appellant the sum of $2,500 raised by the pleadings and the evidence, it appears was not submitted to the jury in the instructions of the court. The only issue submitted to the jury under the instructions' was as to whether or not appellee was entitled to recover the money he claimed to have expended out of his own funds by the express or implied authority of the appellant. Counsel for appellee contend that the evidence was sufficient to warrant the verdict for money loaned by the appellee to appellant. While there was evidence on the part of the appellee tending to prove that he had loaned appellant the sum of $2,500, the testimony on this issue was conflicting, and inasmuch as the issue as to the lo'an was not ¡submitted to the jury in the instructions, we must hold that the verdict was not responsive to such issue, but, on the contrary, was responsive to the issue as to whether or not appellee had expended his own funds at the instance and request of appellant, or under express or implied authority from him to do so, and, as we have shown, such issue was not properly submitted. For the errors indicated, the judgment is reversed and the cause remanded for a new trial.