Skinner Manufacturing Co. v. Douville , 54 Fla. 251 ( 1907 )

Cockrell, J.

— The Skinner Manufacturing Company was sued for commissions b}^ a real estate broker for procuring a purchaser for a large tract of land. The plaintiff recovered judgment in the sum of twelve thousand five hundred dollars together with interest and costs.

The chief points of controversy at the trial and here arose over the issues as to the employment of the broker and as to whether he was the procuring cause of the sale. Upon each of these propositions the evidence is very conflicting- and it was especially important that no improper evidence be admitted which might easily throw the balance of the scale either way. Some of the testimony tending merely to show activity upon the part of the broker and his agents the court refused to strike because much testimony along the same line had been admitted without objection and he could see no harmful results in permitting this particular evidence to remain and we see no reversible error in. this ruling, but the same cannot be said as to the testimony of Ray Douville, an agent and nephew of the plaintiff, that John R. Saunders told him before the sale that he knew the Douvilles had by their efforts helped the sale along. This hearsay statement of an opinion alleged to have been expressed by an outsider who had no authority to represent the Skinner Manufacturing Company and out of the hearing of any one with authority so to represent the company cannot be proper testimony. It would enable the party to' do indirectly what the law would not permit to be done directly, that is to impeach the evidence of Mr. Saunders when placed on the stand by the defendant, driven by the necessity of the case, to deny that he had made any such statement. If by any stretch of the rules of evidence, the testimony of Saunders along this line, had been admissible and he had been called by the plaintiff as his witness, his denial of such a statement would have ended the matter, as no impeachment would have been permitted. Adams v. State, 34 Fla. 185, 15 South. Rep. 905. It seems clear to us that the refusal of the court to strike this testimony placed in possession of the plaintiff an argument that might well overcome the arguments of the defendant which were confined to legitimate evidence only.

It is urged, however, that the motion to strike the testimony came too late and that the defendant should have objected to the question. The distinction has been frequently recognized by this court, but it has not universal application here or elsewhere; it is based largely upon the theory that a party should not be permitted to speculate upon what the witness may say and withhold the objection in the hope that the improper question may 'result in evidence beneficial to himself. Several reasons suggest themselves upon this record why the strict rule should not apply. The same testimony was soug'ht unsuccessfully to be elicited from a previous witness and the defendant then objected. The bill of exceptions presents to' us the evidence in a narrative form and the question eliciting this improper testimony does not appear so that we can see that it was likely to call for the answer. Again in another part of the same.bill the court refuses to strike the testimony because the motion was made too late and no like reason is given for the refusal to strike this. The testimony should have been stricken.

It is argued that the president of the corporation was not shown to1 have the power to make a contract for the sale of the property and therefore no authority to make a contract for commissions. Any unusual restrictions in the charter powers of the corporations are within its peculiar knowledge rather than in the knowledge of the other party and were therefore defensive matter. No authority has been cited to us denying the power of a president of a prhale corporation to enter into' negotiations looking to a sale of property owned by it, and as incidental thereto procuring agencies to make the negotiations effective. So far as this record makes known to us it would appear that the president treated the corporation as his individual property and it is certain that very shortly after this ’’casus belli” arose the property was actually sold.

We find no reversible error in the charges, though they may be subject to some'verbal criticisms heaped upon them. Upon the whole they submitted the case fairly and correctly to the jury.

For the error pointed out above the judgment is reversed and a new trial awarded.

Shackleford, C. J., and Whitfield, J., concur;

Taylor, Hocker, and Parki-iill, JJ., concur in the opinion.