Gimbel, Florsheim & Co. v. Salomon , 54 Iowa 389 ( 1880 )

Day, J.

1. evidence: ageiitf decl?ld taxations oí agent. I. The plaintiffs took the deposition of their •salesman, one N. Kramer, and among others asked him the following question: “Have you had a business acquaintance with the firm of J. Herman & Co. _ ol .Baltimore, Maryland, and 11 so, how long, and to what extent, and who composed the members of said firm?” The witness answered as follows: “I have hada business acquaintance with said firm, but no personal acquaintance with its members. My acquaintance has been from the time I commenced traveling for plaintiffs; I have sold their managers goods at various times for their several stores at Chariton, Ottumwa and Washington, Iowa. I do not know what ■the names of the members who constitute said firm are except by the statements given me by O. M. Salomon, of Chariton, ■Iowa, given in October, 1876, when he told me that M. Nusbaum was one of the members of the firm of said J. Herman & Co.” The defendant moved the court to suppress this interrogatory and the answer thereto, upon the ground that they were immaterial and irrelevant, and that the statements of C. M. Salomon are not admissible against the defendant. The court sustained this motion as to the statement of Salomon so far as it affects Nusbaum. This action of the court is assigned as error

The ruling of the court was clearly correct. Conceding, even, that Salomon was the agent of Nnsbaum, still he could bind him by his declarations only when they were made respecting a matter properly within the scope of his employment, and when actively engaged in the duties of that employment. There is no evidence that the declaration was made under such circumstances. So far as appears, evidence of what Salomon said is mere hearsay.

II. The plaintiffs, on the examination of said N. Kramer, ashed him the following question: «At the time you forwarded to the plaintiffs the order dated August 31, 1877, in exhibit «A,” what explanation, if any, did you give plaintiffs as to who was to be responsible for these goods, and in whose name were they to be shipped and why?” To this the witness answered as follows: « I wrote to my firm of G-imbel, Elorsheim & Co. that the goods herein ordered were for the use and benefit of M. Nusbaum, of the firm of J. Herman & Co., and also attached a statement given to me by C. M. Salomon, the same statement already answered heretofore.

2___ tents of letter. The defendant moved to suppress answer upon the ground that it was not the best evidence of the fact sought to be proven. The motion was sustained, and this ac^jon 0f the court is assigned as error. In this answer it was sought to introduce parol proof of what the plaintiff’s agent wrote to them, without accounting for the absence of the letter itself. That this cannot be done is too elementary to warrant discussion.

III. All the other questions argued relate to the finding of facts by the court. It is urged that they are not supported by the evidence. The court’s finding of facts stands as the verdict of a jury, and cannot be disturbed. unless it is so cleaidy unsupported by the testimony as to warrant the conclusion that it was the result of passion or prejudice. The evidence in this case warrants no such conclusion. The evidence is conflicting. It fairly supports the court’s conclusions.

Affirmed.