Baker v. Gerrish , 96 Mass. 201 ( 1867 )

Wells, J.

The defendant’s first exception is to the admission of paroi proof of the contents of a written paper, without proper evidence of its loss. It was an order for lumber, addressed by the defendant to Nathan Fowler, or N. Fowler & Co. The plaintiff could recover for lumber delivered in pursuance of it only by proof of the receipt and acceptance of the lumber by the defendant. As Fowler & Baker were not parties named in the writing, it would not seem to have any very important bearing upon the establishment of their claim against the defendant. It does not appear therefore that the defendant was prejudiced at the trial by the admission of paroi proof of its contents.

The exceptions do not show that the demand in suit was in fact proved against the defendant, in the proceedings in insolvency. If not so proved, then the testimony of B. J. Gerrish as to declarations of Nathan Fowler, that he was authorized to act for Fowler & Baker, was entirely immaterial. Besides; authority to act as agent for the plaintiff could not be proved by declarations of the party assuming to act as such. Neither would such declarations be competent to prove that the person making them was the real party to whom the demand belonged. The plaintiff’s rights ought not to be affected by such declarations of another party. The defendant has no ground of exception to the exclusion of this testimony from the consideration of the jury.

It does not appear that the bill of N. Fowler & Co. would tend, in any way, to contradict the witness, Nathan Fowler j nor, if it did, that such contradiction would be at all material.

Excluding the mere declarations of Nathan Fowler, there appears to be no evidence upon which the instructions asked for by the defendant could stand. But the court instructed the jury that, if N. Fowler & Co. and Fowler & Baker were the same in reality, the plaintiff could not recover; and the question whether the discharge would bar the action, if Nathan Fowler acted under the authority of Fowler & Baker in the collection of their claim or its proof and discharge in insolvency, is of no consequence without showing that the claim was in fact proved in insolvency. This is not shown, and therefore the exceptions must be Overruled.