William J. Austin & Co. v. Feamster

Mr. Chief Justice Sharkey delivered the opinion of the court. This was an action of assumpsit, brought by the plaintiffs, to recover the price of a quantity of lumber. To prove their account, the plaintiffs introduced N. W. Staples as a witness, who being sworn on his voir dire, stated that he was not interested in the event of the suit. He was also asked whether, in case the plaintiffs succeeded, he did not believe he would be liable to the defendant for the amount recovered, to which he replied that he did not know. He was further asked whether he had purchased the lumber for the defendant, and if so, on what authority he had done so 1 ''He replied that he had purchased it for the defendant, and on his order; and being asked to produce the order, he stated that he did not know where it was. The defendant’s counsel then objected to the witness as incompetent to testify, which objection was sustained. It is clear, from the answers of the witness, that he did not believe himself interested, nor do the answers show any interest in the event of the suit. The question, then, is, whether the mere fact of his being the agent of the defendant, is, of itself, sufficient to exclude him 1 It does not appear that he would be liable either to one party or the other. If, however, he was liable, even to the defendant, in case the plaintiff succeeded, then he was called to testify against his interest, unless, on the other hand, he was liable to the plaintiff in case he failed; and in that case his interest was balanced, as, let the suit go as it might, he was liable to the losing party, which made him an indifferent witness. As a general rule, it may be said that an agent is a competent witness, not only to establish a parol.authority, but to prove the contract. 1 Phillips’ Evidence, 731. 2 Ib. (Cowen & Hill’s ed.) 97, note 89. 2 Saunders on Pleading and Evidence, 731. This rule is subject to exceptions, but there is nothing in this case which can exempt it from the operation of the rule. There is no showing that the witness had any interest whatever in the result of the controversy, apart from the mere fact that he was. the agent who purchased the lumber. To disqualify an agent he must have an interest in the event of the suit. [173] Nor was the witness properly excluded because he did not produce the written order. That question was premature; it could only have arisen when it became necessary to determine whether it was proper to admit parol evidence of the authority which was given in writing. It was not an objection which could be urged against the general competency of the witness. There are casés in which it has been held that the written authority must be produced, but the application of this rule depends upon the character of the instrument. If this was a mere order to purchase so much lumber, it is probably in the possession of the plaintiff; but whether it is or not, its production was of little consequence, being of no higher dignity than a parol authority, and, particularly, at that stage of the cause. This view of the first question raised, makes it unnecessary that we should examine the question which arose on the bill of discovery, as the court erred in excluding the witness. It may be that further examination would have shown a direct interest in the event of the suit, but, certainly, no suc-h interest was shown. The judgment must be reversed, and a new trial awarded.