Evans v. Owens

— The opinion of the Court was delivered by Geeen, J.: This was an action against Reese Owens for goods which were, in point of fact, sold, delivered, and charged on the plaintiff’s book of original entries, to John A. Crawford. It was alleged that Owens was liable for the debt because they were sold to Crawford on the verbal authority of one W. D. Williams, acting as the agent for Owens. On the trial, the plaintiffs, as one of the means of establishing the agency, called a justice of the peace before whom a suit, by one Harvey against Crawford, was tried, to prove that on that trial W. D. Williams had testified that he was agent for Owens. This was objected to, and admitted under exception, and the first error assigned is to the admission of this testimony. The whole of the testimony offered and admitted under this excep [236] tion is comprised in a single question and answer, to wit: Q. Did he do anything more than say he was agent of Reese Owens ? Did he swear to it before you ? A. Yes, he swore to it. There was clear error in admitting this testimony. The witness did not pretend to give the language of the person to whose declarations he was testifying. He did not decribe the kind of agency to which Williams had testified, and hence it is impossible to tell whether the agency, whatever it was, authorized Williams to order goods to be sold on the credit of Owens. This alone is quite enough to condemn the evidence, but, apart from that, the mode of proof was not legitimate. It is a perfectly familiar rule that the authority of an agent cannot be established by proof of the declarations of the agent: Clark v. Baker, 2 Whart., 340; Chambers v. Davis, 3 Whart., 44; Jordan v. Stewart, 11 Har., 244; Grim v. Bonnell, 28 P. P. S., 152. As most of the proof offered consisted of the mere statement or declaration of Williams that he was agent for Owens, the fact that the declaration was made under oath, as a witness in a cause, is entirely immaterial. Owens was not a party to the cause, nor was he present at the trial. The first assignment of error is sustained. We do not think the second assignment can be sustained. The letter in question was not an offer of compromise. It was a letter written by the defendant to one of the plaintiffs, in which he relates that he had written to Mr. Williams, stating that he would send a check for $130 54, if he [Evans] would give a receipt in full, and would hold payment on property until he heard from him, “so that I could send all in one draft if you accepted.” That is all. There is no offer in this letter. It is a mere description of the contents of another letter. It contains some evidence of the agency of Williams, and we think it was therefore admissible. We think the evidence submitted under the third assignment was not competent. The witness, C. D. Evans, being on the stand, testified, in answer to a question, that certain books were his books of original entries. No preliminary examination was made as to who made the entries, or when the items were entered, or when the goods were delivered, with reference to the dates of the [237] charges, and the account itself was against Crawford and not against Owens. In this condition of the testimony, the books were admitted in a lump, and also all the items thereon charged against Crawford. Of course, in such circumstances, the book entries were not admissible. It is true that afterwards the Court did interrogate the witness as to the manner and time of making the entries, and proper answers were given, which, as against Crawford, in an action against him, might have constituted sufficient prima facie proof to warrant their admission. But the cross-examination had also developed that the account contained items against Crawford which were not claimed against Owens. Nevertheless, and without any selection and proof of the items claimed as against him, the account was admitted as an entirety. There is much confusion in the testimony, and the account itself is not printed. We do not discover anywhere in the testimony a distinct presentation of the particular items which, it is alleged, were ordered by Williams. There is some testimony that the whole amounted to about $500, but, of course, that would not make the entire account admissible. We think it very clear that in no aspect of the testimony was the account competent as a book-account of original entries in the present action against Owens. It is not charged to him at all, and it is very questionable whether the individual items claimed against Owens could have been given in evidence, except after distinct proof as to each of those items, accompanied with proof that they had been ordered by Owens or his authorized agent. We cannot find any such itemized proof in the testimony. As an entirety, the account certainly was not admissible. We do not think there is any merit in the remaining assignments and they are not sustained. Judgment reversed and venire facias de novo awarded.