Kamm v. Rees

GIRBERT, Circuit Judge (after stating the facts as above). The defendant assigns error to the refusal of the court to instruct the jury that if they found from the evidence that the plaintiffs at any time elected to treat the contracts as the contracts of the Snake River Transportation Company, the defendant could not be held liable thereon in the present action, and he invokes the doctrine that where a plaintiff has a right to proceed either against the principal for whom a contract was made, or the agent by whom it was made, and he elects to hold either of those liable, he thereby releases the other. We are unable to see liow that doctrine was applicable to the present case. According to the testimony of the plaintiffs, they never at any time had the right to make an election and never did make an election, but they contracted ■ with and gave credit to the defendant in his individual capacity, and not as the agent of another. According to the theory of the defendant, as set forth in his answer and in his testimony, the plaintiffs had no right of election, but, contracted with, and gave credit to, the Snake River Transportation Company only. Not only did the plaintiffs testify that the defendant was the principal in the transaction and that they dealt with him individually, but it is shown that at the time when the contract was made the Snake River Transportation Company was not yet in existence. The corporation was not referred to in the communication in which inquiry was made as to the time within which the engines and boiler could be constructed, nor in the final communication by which the defendant closed the contract, and, although the plaintiffs subsequently credited the payments which were made thereon to the Snake River Transportation Company, they testified that they did so at the request of the defendant for reasons which he gave, and that they never, at any time, looked to the corporation for payment, or gave credit in fact to any one save the defendant in his individual capacity. The — 20 — question with whom was the contract made, and to whom was the credit extended, was the leading question in the case, and the court, under proper instructions, submitted it to the decision of the jury. Several assignments of error present the question whether or not the judgment rendered against the Snake River Transportation Company at the suit of Shindler is a bar to the present action. It is contended that a stockholder of a corporation is in privity with the corporation, and that, since the defendant was a stockholder of the corporation defendant in that action, the judgment therein was binding upon him, and he may plead it in bar of the present action. To this contention there are two answers: First, a stockholder is not in all relations in privity with his corporation, and it is generally held that he is in privity only as to rights arising out of his contracts for subscription for stock. Clausen v. Head, 110 Wis. 405, 85 N. W. 1028, 84 Am. St. Rep. 933; Andrews v. National Foundry & Pipe Works, 76 Fed. 172, 22 C. C. A. 110, 36 L. R. A. 139; State Bank v. Bobo, 11 Rich. Law (S. C.) 597. In the second place, in order that a defendant may plead in bar a judgment in a prior action, he must have been a party to oiq represented in the former action as an actual defendant, and in the same attitude as an adversary party toward the subject of the litigation as that in which he appears in the second. There is evidence in this case which tends to show that the defendant not only did not appear, and was not represented in the capacity of a defendant in the Shindler case, but that he was in a sense the real party in interest therein as plaintiff, that the action was brought at his instance and for the protection of his own interests, and that he was the actual manager of the conduct of the case for the plaintiff, and bore the expense thereof. If it be true that the plaintiffs in this case assigned their claim to Shindler at the instance of the defendant, and on the agreement and understanding that it was for his benefit and that the assignment was not to affect their right of recourse against him as their debtor, the defendant is in no position to advance the plea of estoppel by the former judgment. He is himself estopped to allege estoppel. Error is assigned to the admission of testimony tending to show that McMurchey was the agent of the defendant, and evidence of statements and admissions made by McMurchey at the time of his visit to Pittsburgh, and to the instruction of the court to the jury that, if McMurchey went to Pittsburgh at the defendant’s instance and as his agent, the defendant would be bound by all that he said and did within the scope of his agency or the purpose for which he was sent, and to the refusal of a requested instruction that no promise or representation made by McMurchey to the plaintiffs to the effect that he would advise the defendant that the latter was bound to pay the plaintiffs any amount whatsoever, could be considered by the jury in undertaking to arrive at their verdict. It is argued that inasmuch as the declarations of a person assuming to act as the agent of another, or claiming to be such agent, are not admissible in the first instance to prove the agency, nor to prove the extent thereof, it was error to permit the plaintiffs to testify that McMurchey represented himself — 21 — to be the agent of the defendant. But the evidence of McMurchey’s agency does not consist alone in his own declarations. There is direct and competent evidence that he was such agent in the testimony of William M. Rees, who testified that, when McMurchey came to Pittsburgh, “He had one of our letters and a letter from Jacob Kamm introducing him to us as his attorney. I read the letter from Jacob Kamm introducing Mr. McMurchey as his attorney.” The witness had had, a long course of dealing with the defendant, by correspondence, and he must have known the defendant’s handwriting. No attempt was made to show that he did not. James McAfee, who at that time was an employe of the plaintiff's, also testified that Mr. McMurchey came to Pittsburgh “with a letter of introduction as Mr. Katntn's attorney.” Such a letter would stand for a power of attorney for all-the declarations and representations of the agent made in connection with the business on which he was sent. It was competent to show that he said that the defendant was having trouble with his partners, and that he wanted the plaintiffs to make an assignment of their account to him and also to another person, for the purpose of protecting him in a settlement with his partners. McMurchey’s statement that the defendant was morally and legally responsible for the debt, while it was not competent evidence for the purpose of proving the defendant’s liability, since it was a declaration of an agent as to a past transaction of his principal, was nevertheless competent and proper for the purpose of showing by what representations the plaintiffs were induced to assign their account, and upon what they relied in so doing. There is other evidence in the record tending to show that McMurchey in obtaining the assignment acted as the defendant’s attorney. It is true that he had been the attorney of the Snake River Transportation Company, but it is evident that if he went to Pittsburgh at the instance of the defendant, to obtain for him, or to another for his use, an assignment of the plaintiffs’ account, to be used in a settlement of his difficulties with his partners, and for his own protection as against them, McMurchey was acting in a capacity hostile to the corporation and to the other stockholders, and was' representing the defendant only. There is other testimony in the record tending to show that he was the defendant’s attorney. Shindler testified that the defendant and McMurchey came to his store, bringing an assignment from the plaintiffs, and that the defendant wanted him, Shindler, to sue on that and two other accounts. lie testified: “Mr. Kiirnm said he had this claim assigned to me. 1 understood at the time it was through Mr. Kamrn’s request that the Iteeses assigned their claim to me." C. W. Miller testified that Mr. Kamm came to his office and employed him to bring the suit. He testified that he had advised the defendant to have the claims all assigned to one person, and that that was the course pursued, and that McMurchey gathered up the claims. “Pie got them assigned for Mr. Kamm, as I understood it.’-’ We find no error, therefore, in the admission of the evidence, or in the instruction of the court, or in the refusal to instruct as requested by the defendant. — 22 — The defendant assigns error to the admission in evidence of certain drawings made .by the plaintiffs’ draughtsman for use in the shop in constructing the boiler, engines, and other machinery which were the subject of the contract. The draughtsman testified that the defendant was introduced to him as the man who was getting the boat built, and that he saw the defendant on an average of twice a day during the time of his stay in Pittsburgh; that after the witness had prepared the drawings he submitted them a number of times to the defendant, and that at-the defendant’s instance numerous changes were made therein. Thomas M. Rees also testified that the defendant saw the drawings and that’ a blue print of one of them, with the name “Jacob Kamm” upon it, was subsequently sent to the defendant at Portland. 'The defendant did not deny that he assisted the draughtsman in preparing the drawings, and did not testify that he did not see the inscriptions “Jacob Kamm” thereon. The name “Snake River Transportation Company” does not appear on any of the drawings, but on each of them is written the name “Jacob Kamm” or “Kamm,” or “Kamm engine,” or “Kamm boiler” or “for Kamm.” It is true that no witness testified that the attention of the defendant was ever directed to his name as it appeared on the drawings or that he actually observed it. But, iri view of his failure to deny that he noticed his name thereon, there was clearly no error in submitting the drawings, with the inscriptions thereon, to the jury, that they might give them such weight as in their judgment they were entitled to in determining the question: To whom was the credit originally given?Error is assigned to the admission of certain entries in the plaintiffs’ books of accounts, entries made in January, February, and March, 1890, in an account of the time of the men while working on the boilers and engines, entries made in March, 1890, in a book containing an account of the material used in the construction of the boilers and engines, entries made in March, April, and May, 1890, in a book of goods purchased, to be used in carrying out the contracts, and entries made in a book placed in the hands of the foundry foreman, in which to keep the weights of the various articles manufactured. These books were introduced for the purpose of showing that the name of the defendant appeared on such accounts. They bear such headings as “Kamm Engines,” or “Engines Kamm,” “For Kamm Boiler,” “For Kamm,” and the last thereof is headed “Captain Jacob Kamm.” The defendant had shown that on the ledger of the plaintiffs the $1,000 payment of March 1st, and the $3,000 payment of March 29, 1890, appeared as credited to the Snake River Transportation Company. The plaintiffs had testified that those payments were so entered to the credit of the corporation at the request of the defendant, and for the reason, as he stated, that he wished to keep this account separate from his other accounts, and wanted to have control of the shipment for the purpose of protecting himself. The defendant contends that the entries of credits so made are conclusive evidence that credit was given to -the corporation, and that the promise of the defendant, if any he made, was that of a guarantor, void if not in writing, and that in any view of the original transaction, the sub — 23 — sequent entries in other books tending to show that credit was given to the defendant, were self-serving in their nature and incompetent, and that the rights of the defendant could not be varied by entries which were not contemporaneous with the transaction and not made in the due course of business as part of the res gestae. The fact that a manufacturer of goods charges the same to, or enters credits thereon in an account with the person to whom they are delivered is prima facie evidence to show for whom the goods were manufactured, and to whom the credit was given, but it is not conclusive evidence, and the presumption may be overcome by proof that the goods were in fact manufactured for, and the credit was in fact given to another. Clark v. Jones, 87 Ala. 474, 6 South. 302; Lusk v. Throop, 189 Ill. 127. 59 N. E. 529; Winslow v. Dakota Lumber Co., 32 Minn. 237, 20 N. W. 145; Lance v. Pearce et al., 101 Ind. 595, 1 N. E. 184; Burkhalter v. Farmer, 5 Kan. 477. We think that the entries so admitted were, in contemplation of law, contemporaneous with the transaction, and part of the res gestse. It is true that they were not made at the very date when the contract was made. The majority of them seem to have been made in March, 1890. Some were made in April and May of that year, and some in January and February, several weeks prior to the first entry of the name of the Snake River Transportation Company on any of the plaintiffs’ books. But they were all made, either at the beginning or during the progress of the work on, the contracts, and before any of the machinery had been manufactured or shipped from the plaintiffs’ shop. “The entry need not he made exactly at the time of the occurrence, but it is sufficient if it is made within a reasonable time. In this particular every case must be made, to depend upon its own peculiar circumstances, having regard to the situation of the parties, the kind of business, the mode of conducting it, and the time and manner of making the entries.” 17 Cyc. 384. It has been held that entries made at the completion of a continuous transactions are admissible (Bolton’s Appeal, 3 Grant Cas. [Pa.] 201), and that, where a vendor has sold goods to be delivered at a distance, entries made at the time of their delivery to the carrier are competent evidence of the sale and delivery (Keim v. Rush, 5 Watts & S. [Pa.] 377). Applying these principles to the present case, it seems dear that all entries made during the progress of the construction of the machinery in the due course of business, before the delivery of the goods, and before any controversy had arisen concerning the person to whom the same were chargeable, are contemporaneous entries. A more serious objection is that the entries were not made with intent to make a charge against the defendant, but were entries made in the accounts of the plaintiffs for their own use and convenience. But, in view of the following considerations, we are not convinced that it was reversible error to admit them: (1) They were but cumulative evidence of the facts shown by the drawings; (2) all the materia,! evidence contained in the entries was brought out in the deposition of the witness Shields without objection, and the deposition was read to the jury without objection; (3) the entries were offered and received, not for the purpose of charging the defendant, but for the pur — 24 — pose of corroborating the plaintiffs’ testimony that credit was given to the defendant and not to the Snake River Transportation Company. Book entries are often admissible for the purpose of corroborating a witness, although they may not be admissible as substantive evidence for the purpose of proving items of account. Donahue v. Connor, 93 Pa. 356; Gill v. Staylor, 93 Md. 453, 49 Atl. 650; Wright v. Towle, 67 Mich. 265, 34 N. W. 578; Perry State Bank v. Elledge, 99 Ill. App. 307; Petit v. Teal, 57 Ga. 145; Bean v. Lambert (C. C.) 77 Fed. 862. It is assigned as error that the court permitted Shindler to testify that he always looked to the defendant for payment, and that he looked to him for the payment of the claim of the G. Shindler Furniture Company against the steamboat Norma. This testimony was given ■on the redirect examination of the witness, after he had testified on cross-examination by defendant’s counsel in answer to the question: “You had never trusted Mr. Kamm, had you ?” to which he answered: “Well, that is who we did trust. We furnished four or five steamboats for him, and Mr. Kamm came in the store and ordered anything. We never worried about who to charge it to, the different corporations he was in. We always did business with Mr. Kamm.” He had further testified on the cross-examination that his company had furnished goods for five steamers for the defendant and that the charges therefor had been made against the different boats and different corporations at the defendant’s request, “But we always looked to him for the money.” The testimony so brought out by the defendant on cross-examination covers all the evidence given on the redirect examination which is the subject of the assignment of error, and there was no error, therefore, in its admission. We find no error in the record for which the judgment should be reversed. It is accordingly affirmed.