Sugar Pine Lumber Co. v. Garrett , 28 Or. 168 ( 1895 )

1. As a defense to the action the defendants pleaded in their answer that the Pacific Builders’ Supply Company was the agent of the plaintiff, and had the exclusive right and authority to sell the output of its mill in Multnomah County, and receive payment therefor; that they purchased the lumber and material in question from such company, and paid it for the same prior to the commencement of this action. Except as to some matters of costs and disbursements, the errors assigned are directed to the rulings of the court having reference to this question of payment. The purchase of the lumber and the payment to the supply company were both admitted, and the only contested question on the trial was as to its authority to receive the payment. It is not claimed, as we understand the record, that the original appointment of the supply company as plaintiff's agent for the sale of lumber authorized it to receive payment from purchasers; but defendants sought to show that by the general course of dealing said company was held out to them by the plaintiff as having-such authority, and gave evidence tending to that effect. The plaintiff, to rebut this evidence, and to show that any authority which the supply company had to receive money for it from the defendants was revoked prior to the payment, and that it had notified defendants in writing not to make any payments to the supply company, offered to read in evidence the deposition of one E. N. Grant, its former bookkeeper, taken at Los Angeles, California, on a commission issued in pursuance of a stipulation of the parties. The defendants objected to the reading of this deposition, on the ground that the commission was issued to C. O. Davis, a notary public, while the certificate attached to the deposition showed that it was taken before Charles C. Davis, commissioner, and did not show that he was a notary public or the party to whom the commission was issued. This objection was overruled, and such ruling is assigned as error. In our opinion, the objection came too late; it did not go to the relevancy or materiality of the testimony, or the competency of the witness, but to defects which could have been remedied by retaking the deposition or by an amendment to the certificate. In such case the objection to a deposition should be taken by a motion to suppress, or by some other appropriate proceeding prior to the trial. “A party should not be permitted to lie by,” says Sherwood, J., “and lull his adversary into a sense of security by failure to file any motion to suppress his depositions, thus induce him to announce himself ready for trial, and then count on springing the question of some informality on him, for the first time, when he offers to read those depositions in evidence”: Delventhal v. Jones, 53 Mo. 460. And in Doane v. Glenn, 88 U. S. (21 Wall. 33), it was held that an objection to a deposition on account of defects which might have been obviated by retaking it cannot be made on the .trial, but must be noted when the deposition is taken, or presented afterwards by motion to suppress before the trial is begun. In this case the court said: “The party taking a deposition is entitled to have the question of its admissibility settled in advance. Good faith and due diligence are required on both sides. When such objections, under the circumstances of this case, are withheld until the trial is in progress, they must be regarded as waived, and the deposition should be admitted in evidence. This is demanded by the interests of justice. It is necessary to prevent surprise and the sacrifice of substantia,! rights. It subjects the other party to no hardship. All that is expected of him is proper frankness.” To the same effect is Weeks on Depositions, § 440; 5 Am. and Eng. Ency. of Law, 610, and authorities there cited: Howard v. Stilwell and Bierce Manufacturing Company, 139 U. S. 199 (11 Sup. Ct. 500); American Publishing Company v. C. E. Mayne Company, 9 Utah, 318 (34 Pac. 247); Hill v. Smith, 6 Tex. Civ. App. 312 (25 S. W. 1079). It is true some authorities from California, cited by defendants, hold otherwise, but on principle as well as authority we are of the opinion that the rule as above stated is not only sound, but eminently fair and just.

2. Objection is also made to the ruling of the court permitting the plaintiff to prove the contents of a letter from itself to defendants by a copy thereof attached to Grant’s deposition, and by a press copy in plaintiff’s letter-book, in which letter defendant’s were notified to remit direct to plaintiff, and not through the supply company. Before this evidence was admitted, it was shown that the original had been mailed at Grants Pass, postage prepaid, directed to the defendants at their usual postoffice address; that a notice had been given them on January first, eighteen hundred and ninety-four, the day before the trial, to produce the original; that they had failed to do so, and that the copy attached to Grant’s deposition and the letter-press copy were identical in every respect, and exact copies of the original letter. Under these circumstances we think the evidence was properly admitted. It was the best evidence plaintiff could produce as to the contents of the letter.

3. The court below held that sufficient notice had been given defendants to produce the original. There is nothing here to indicate that such ruling was erroneous, and we are not advised of any rule of law which would render such a notice insufficient because it was given on a nonjudical day, except as it might affect the question of reasonable time.

4. Nor was there any error in allowing plaintiff judgment for costs. Where a judgment is modified on appeal to the circuit court, the question of costs is in the sound discretion of that court, and its decision will only be disturbed here -in case of the abuse of such discretion: Hill’s Code, § 552.

5. The allowance of mileage to the witness Kinney was in accordance with the rule announced by this court in Crawford v. Abraham, 2 Or. 163, which, so far as we are informed, has been uniformly approved and followed ever since it was announced in that case. The facts are that this witness traveled a total distance of five hundred and thirty-eight miles for the sole purpose of testifying in this case, and he was allowed fifty-three dollars and eighty cents therefor.

There was no error in submitting to the jury the question as to the right of the supply company to receive payment on sales made by it for plaintiff. Its authority depended upon controverted questions of fact growing out of the manner in which it had been held out to the defendants by the plaintiff, and these questions could only be determined by the jury.

Affirmed.