McCloskey Bros. v. Hood Milling Co. , 119 Miss. 92 ( 1918 )

HoldeN, J.,

delivered the opinion of the court.

McOloskey Bros., of New Orleans, sued the appellee, Hood Milling Company, of Gulfport, Miss., for a bill of merchandise alleged to have been ordered by, and shipped for, the Hood Milling Company, which seems to have been composed solely of J. B-. Hood, operating under the name of the Hood Milling Company. The orders for the goods were signed by Hood Milling Company in the beginning of the transactions, and later were signed Hood Milling Company, by J. E. Hood, agent. It appeárs that J- E. Hood is the son of J. B. Hood, who had retired from business, and that he used the name of Hood Milling Company, composed solely of J. B. Hood, his father, for the purpose of obtaining credit in purchasing the goods from the appellants, Mc-Closkey Bros, The proof of appellee showed that the goods and merchandise involved were never delivered to the Hood Milling Company, nor were they purchased by the Hood Milling Company, or J. B. Hood, the sole proprietor of the Hood Milling Company; that neither the Hood Milling Company nor J. B. Hood had any knowledge of the purchase or delivery of the merchandise in question. However, J- E. Hood, the son of J. B. Hood, ordered the goods in the name and on the credit of the Hood Milling Company, and was occupying the office of the Hood Milling Company or J. B. Hood.

At the trial in the lower court J. B. Hood, father of J. E. Hood, and who was in fact the Hood Milling Company, testified that his son, J. E. Hood, had no authority whatever to order the goods in the name of the Hood Milling Company; that he, J. B. Hood, or the Hood Milling Company, had no knowledge of any of the transactions with reference to the purchase and delivery of the goods between his son, J. E. Hood, and appellants, McCloskey Bros.; that the signing of Hood Milling Company’s name to the orders for the goods was without authority, and for which the Hood Milling Company, or J. R. Hood, was not responsible; and that he J. R. Hood, had previously retired from business.

The appellants, McCloskey Bros., had introduced their evidence showing the signed orders and delivery of the goods at the instance of the “Hood Milling Company.” Appellants also introduced a witness by the name of Knoblert, the credit man of appellants, who testified that he went to Gulfport and interviewed J. R. Hood, the owner of the Hood Milling Company, after the claim became due, and that J. R. Hood stated to'him that “J. E. Hood, his son, was there as his agent, running his business.” Mr. J. R. Hood emphatically denied that he made any such statement to the witness Knob-lert. On the contrary, Mr. Hood testified that he had no such conversation with the witness, and that J. E- Hood, his son, was not his agent, and was not and had not been transacting the business of the Hood Milling Company as his agent when the purchases of the goods in this case were made, and that he had no knowledge whatever of such transactions, and that all such transactions between appellants and his son, J. E. Hood, were without his knowledge or consent or authority.

At the conclusion of the testimony the circuit judge granted a peremptory instruction to the jury to find for the defendant, J. R. Hood, or the Hood Milling Company. Appellants contend that the granting of the peremptory instruction was error, as there was a conflict in the testimony as to whether J. E. Hood, the son, was acting as agent for the Hood Milling Company at the time of the purchase of the merchandise sued for in this case.

We think the admission or declaration made by J. R. Hood, the sole proprietor of the Hood Milling Company, to the witness Knoblert, that his son, -J. E. Hood, was running the Hood Milling Company business as his agent at the time of the purchase of the merchandise, was competent evidence tending to prove the disputed fact of agency, or authority to buy the goods, for the Hood Milling Company.

It is true that Mr. J. R. Hood emphatically denied making any such statement to the witness Knoblert, but nevertheless the contradiction presented a conflict in the testimony as to the material fact of agency, along with the other testimony in the case tending to show the agency, and should have been submitted to the jury for its determination.

The admissions and declarations of a party against his interests are competent evidence tending to establish the ultimate fact in dispute in the case, and such evidence is to be considered by the jury, in connection with the other proof, in determining the material issues of fact involved.

Therefore the court erred in granting the peremptory instruction for the defendant, appellee, because of the conflict in the testimony on the question of fact as to the agency of J. E. Hood, which agency the appellants’ witness Knoblert testified was admitted by appellee, J. R. Hood, but which was denied by the appellee, J. R. Hood. 1 R. C. L., section 26, p. 488; Myer Neville Hardware Co. v. Spann, 35 So. 177.

Reversed and remanded.