Burger v. Limbach

Graves, J. Limbaeh, a hardware dealer, sued Burger before a justice of the peace for part of the purchase price of a stove and certain pipe and zinc sold to Burger some time before. He recovered before the justice and afterwards on appeal, and Burger has brought the ease here on exceptions. At the time the articles were sold one Herbst was serving Limbaeh as his clerk, and the theory of the defense in the circuit court was that Herbst, by authority of Limbaeh, sold the goods for wood to be paid to himself, and that the wood had been paid, and to prove this defense he made Limbaeh his witness; and the latter, testifying in that character, swore that Herbst was clerk for him, and sold the goods to Burger, and in effect that the sale was in his presence. But he further , testified, as Burger’s witness, that- he did not authorize Herbst to sell on his own account, or to sell for wood, and moreover that Herbst on the very occasion told [164] him that Burger wanted to buy on credit, and inquired of witness if he should sell in that way, and that witness told him to do so, and that Burger said he would pay and actually did pay five dollars. He also swore on Burger’s part that it had not been his custom to allow Herbst to sell goods for pay to be taken by himself. Having made this explicit showing by Limbach as his own witness, Burger is hardly justified in complaining of the refusal to allow him to inquire further of Limbach whether he had not on other occasions permitted Herbst to sell on his own account; nor of the refusal to let him go over the same ground in a general way, which had been covered already by more definite questions and answers. The defense impliedly admitted that Burger knew he was buying at Limbach’s shop and that the goods were his, and that Herbst could not sell them as his own without authority from Limbach. And the bill of exceptions states that it did not appear that Limbach knew of any other arrangement between his clerk and Burger than that which Burger had proved by Limbach. Moreover there seems to have been no evidence given or offered to prove that the sale or any part of the negotiation occurred at some other time. ‘ Hence it is not perceived that the court erred to Burger’s prejudice in refusing to permit the latter to swear that on the occasion specified he made a private arrangement with Herbst to pay him in wood. Whilst some of the rulings might very well have been different, we are not satisfied that there are any which would justify a reversal. The case derives a peculiar complexion from the showing actually made on Burger’s part through Limbach himself, and from the shape of the questions which were ruled down. After considerable attention to the record we think the judgment should be affirmed with costs. The other Justices concurred.