Mahon v. Rankin , 54 Or. 328 ( 1909 )

Mr. Justice Slater

delivered the opinion of the court.

1. The first error assigned for a reversal of the judgment is based upon an exception to the admission of the testimony of plaintiff given in rebuttal, and in explanation of his written declarations against his interest in a series of letters and telegrams addressed to the defendant. They were dated after January 15, 1907, on which date plaintiff had addressed a letter to the defendant, in which he had stated, in substance, that he considered his part of the original contract fulfilled, inasmuch as the land had been purchased, the deeds secured, and placed in the bank according to agreement, and that he considered his commission of $1 per acre earned, and that he would treat any work done after January 14th as under a new agreement. He therein offered to continue his services with defendant, and states terms. But, on the 18th, defendant replied, declining the offer, and denying, in effect, plaintiff’s claim of a completed contract. In the meantime, on the 16th, plaintiff telegraphed defendant in relation to “fifteen thousand acres in larger tracts with very favorable prospects of control on reasonable terms,” and on the 17th addressed him a lengthy letter about the future control of 1,807 acres owned by one party, which had been under contract at $15 per acre, but the time had expired; and about other land owned by other parties. Now, after plaintiff’s attention had been particularly directed to the letter of the 17th, he was requested by his counsel to explain whether he had any conversation or negotiations with Rankin concerning his employment under another contract, different from the one on which the action was brought,' and whether, in, contemplation of these negotiations being consummated, he undertook to do anything under them. The answer to each inquiry was, “I did.” The witness was then conducted through all of his subsequent written communications and telegrams relating to further contracting for, or controlling, timber lands, or the sale thereof to other parties, and in each instance referred his acts and declarations to a supposed or contemplated new contract with defendant, made after April 15th, his answers in some instances being opposed to, or contradicting, the natural inference to be drawn from his written declarations. The objection interposed was that such testimony was incompetent and immaterial, and that, so far as it was material, it tended to dispute the writings referred to and introduced in evidence. It is argued that such writings cannot be explained, varied, or modified by oral testimony, and therefore it is incompetent. The letters and telegrams referred to were introduced in evidence by defendant, not to prove the terms of the contract alleged by him in his answer, but as containing declarations made by the plaintiff against his interest, while in the performance of the contract sued upon, and tending to show that the original contract upon which the action is based had not then been' fully performed by plaintiff, and also that plaintiff had some further interest in the ultimate disposal of the optioned lands. Therefore such declarations stand upon the basis of admissions in writing, but, as a . general rule, such admissions, although in writing, are not conclusive any more than if orally made, and therefore the party making them may prove the contrary, or show that they were made by mistake: 1 Enc. Ev. 396; State v. Blodgett, 50 Or. 329 (92 Pac. 820) ; Gradwohl v. Harris, 29 Cal. 150. The defendant, in support of his contention, having produced testimony relating to transactions subsequent to the time of the completion of the contract as alleged in the complaint, the plaintiff is not for that reason precluded from explaining such transactions, if he can, and referring the doing of such acts and the statements made by him to another or different contract.

-2. The second error relied upon is of the same nature, but more definite and specific. Plaintiff was asked: “You may state whether or not in using the word ‘we’ in relation to your services in this matter of Mr. Rankin’s you indicated, or meant to indicate, to him that you had any other interest than your dollar an acre.” Objection was made that the testimony sought was incompetent, and that the letter containing the declaration speaks for itself. The objection being overruled, plaintiff answered that he had not thought of indicating to Mr. Rankin that he had any interest in the transaction beyond the carrying out of his contract for a commission of $1 an acre. In addition to the point just passed upon, the objection also involves the propriety and mode of the proof of an intent. It seems to be the general rule in this country that whenever, in either civil or criminal cases, the intent of a person in the doing of an act, or in the uttering of a declaration, becomes material, such person, whether a party to the cause or not, may testify directly as to what his intention was in the given- instance: 7 Enc. Ev. 596. Such testimony is admissible, no matter how inconclusive, unsatisfactory or inconsistent it may be, as such characteristics affect only its weight: Pope v. Hart, 35 Barb. (N. Y.) 630.

3. C. E. Ireland was permitted to testify, over defendant’s objection, concerning the terms of a contract made between him and Rankin about November 16, 1906, whereby the former was to help plaintiff in the performance of the contract involved in this action. Being asked to state what the arrangement was, he answered: “Mr. Rankin told me if I would go up and help Mr. Mahon out he would give me ten thousand dollars.” On defendant’s motion, and with plaintiff’s consent, the latter part of the answer referring to the compensation was stricken out, and the jury instructed to disregard it. Ireland had also testified that Rankin told him in the same conversation, in a general way, that he (Rankin) was to pay Mahon $1 per acre for his work, but that he did not go into details. Rankin’s attention, when testifying in chiéf in his own behalf, was called to Ireland’s statement as to what was said about Mahon’s compensation, and was asked by his counsel to state the facts in relation thereto. He answered: “Well, that was the general conversation; that when the land was turned, Mr. Mahon was to have a dollar an acre. We never went into the details as to the contract between me and Mahon.” He was asked on cross-examination to state how much he was to pay Ireland for his work. This was objected to as immaterial, and, being overruled, defendant stated that he was to pay Ireland $10,000, and prejudicial error is assigned thereon. Plaintiff testified that Rankin, in response to his request for men to pass on this land, sent Ireland; and there was offered and received in evidence, over defendant’s objection, a letter, dated November 16, 1906, written by defendant, and addressed to plaintiff, introducing C. E. Ireland, who delivered the same to plaintiff on the following day. So far as material, it contains this statement: “Now, he will take up any line to assist you in any way that he can, either go and negotiate with parties, go and see them, or go in and take a bird’s eye view of some of the timber. He is perfectly reliable and trustworthy, and does not talk in the least. * * You can consult with Mr. Ireland, and he can act, wherever you direct, in such a way that it will not conflict. In cases where it will be necessary for you to be in two places at once, he can fill one for you.” These'several, objections will be considered together.

The main issue between the parties to this action involves the nature and terms of an oral contract made by them, and on which plaintiff seeks to recover. Plaintiff and defendant were the only persons present when this contract was made. If the promise was that plaintiff should have $1 an acre when the options were secured and deeds deposited in the bank, then plaintiff was entitled to recover, provided he performed and kept the other terms of the contract. But if the agreement was that plaintiff was not to be paid $1 on account of the options secured and deeds thus deposited, unless the options were taken by the defendant, then plaintiff was not entitled to recover, except to the extent sales were consummated by delivery of the deeds to defendant. Defendant’s counsel urged that, as the testimony of plaintiff and defendant, respectively, was directly in conflict upon this main question, a slight apparent corroboration of plaintiff was sufficient to turn the scale against the defendant; that the only corroboration was the testimony of Ireland as to the arrangement made with him by defendant in connection with the same transaction, by which it is claimed defendant agreed to pay Ireland, unconditionally, the sum of $10,000, for his services; that while the court, upon objection of counsel, struck out so much of the answer of the witness, Ireland, as disclosed the amount of his compensation, there was left before the jury so much of Ireland’s testimony on that subject as detailed the fact that he was employed by the defendant to secure these options, and that he was paid, or to be paid, therefor. It is claimed that it was error to allow any portion of such testimony to be considered by the jury, and that such error was emphasized when the court required defendant, upon his cross-examination, to testify, not only that he had made such an arrangement with Ireland, but that he had agreed to pay him $10,000 for his services. 'On the other hand, it is claimed by the plaintiff that the fact and extent of Ireland’s agency for defendant in securing these options were material to the issue, because he was to, and did, perform work for defendant under the direction of the plaintiff. We are of the opinion that this latter contention is correct. The evidence shows that, by plaintiff’s direction, Ireland personally carried to defendant the offer, and proposed terms of the pending negotiations with T. G. Hendricks respecting the purchase of twenty-two quarter sections, at $20 per acre, with 5 per cent off as commission, and returned with a check drawn by the defendant, for the sum of $8,000, payable to himself, to consummate that deal.

4. It will be remembered that the issue raised by the third separate defense, and the reply thereto, was whether plaintiff was to receive this commission in violation of his fiduciary relation to the defendant, as the answer alleged, or whether the latter was to, and did, receive the benefit of such reduction, and that he had knowledge thereof, and authorized the purchase to be made upon the terms stated, as alleged in the reply. The solution of this issue depended entirely upon the testimony of Ireland as to what knowledge of that matter he possessed, and what he imparted to his principal, and for that reason evidence of his employment and the extent of his authority was admissible. But as to what compensation Ireland was to receive, that was wholly immaterial and irrelevant to any issue in this case, and this is practically conceded by plaintiff’s counsel. Nor would plaintiff be entitled tó such evidence because it formed a part of a general conversation, as contended for by him. The statute provides that

“When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole, on the same subject, may be inquired into by the other”: Section 702, B. & C Comp.

The plaintiff is the party who offered the statement made by defendant to Ireland as to what the former was to pay plaintiff, and such offer conferred upon defendant the right to state all that wás said at the time on the same subject that would, in any way, qualify or explain the admissions. In doing so he did not testify as to the terms of Ireland’s employment, but qualified the purported admission by admitting that he said “that, when the land was turned, Mr. Mahon was to have a dollar an acre.” Defendant was not in the position of an actor offering a part of a conversation against the interest of plaintiff, but of explaining what had been introduced against himself by plaintiff, and the latter’s rights are confined to the ordinary rules governing cross-examination of a witness.

5. Moreover, it was held in Rollins v. Duffy, 18 Ill. App. 398, that proof of the conversation must be confined to matters material to the issue, and tending to explain or qualify what has been said by the other party and proved as admissions, and that when parts of a conversation are material, and other parts are not only immaterial, but have a direct and manifest tendency to prejudice the other party in the minds of the jury, it is the duty of the court to admit only those portions which are material. A different rule has been declared in some cases, in which it is held that everything said in the conversation, whether material to the issue, or tending to explain the admission proved on the other side- or not, is admissible. It is believed, however, that the better rule is that the balance of the conversation to be competent must be material, and in some way affect that portion of the conversation already proved: Wilhelm v. Cornell, 3 Grant, Cas. (Pa.) 178. That appears to be the' intent of our statute in limiting the right to the balance of the conversation to that which is “on the same subject.”

6. It is contended, however, that, as Ireland’s agreed compensation was also conditional, no injury could result to the defendant from the admission of such testimony. Defendant’s answer to the question addressed to him by plaintiff’s counsel was: “I told him if the deal was carried through on the basis it had been arranged, I would give him $10,000” — and immediately he was asked, “That was contingent also?” to which he replied, “Yes, sir.” While we are satisfied that whether defendant agreed to pay Ireland this sum conditionally or unconditionally, it would not be relevant or material to the issue; but, defendant having also stated that his agreement to pay Ireland was conditional upon the deal being carried through on the basis it had been arranged, it is manifest that it could not prejudice defendant, for if any inferences applicable to the issue can be drawn therefrom, it tends more to support defendant’s contention than that of plaintiff’s, and its tendency could not in any event be to excite prejudice against defendant in the minds of the jury.

7. The court gave this instruction:

“If plaintiff exceeded his authority, both as to the initial payment of $50 per 160 acres and $14 per acre purchase price, or if he exceeded his authority in either of such particulars, and if you further find that defendant gained a knowledge of all the material facts in connection with the acts of plaintiff in so exceeding his authority, and the defendant adopted such acts of plaintiff, and accepted the benefits resulting from such acts of plaintiff, then such conduct upon the part of defendant would be ratification of the unauthorized acts of plaintiff, and such ratification would bind defendant to the same extent as though plaintiff acted within the terms of his authority, and in case of such ratification, defendant would not be entitled to any allowance or verdict for such sums as were paid out in excess of authority and after-wards ratified.”

8. It is first objected that the court, by this instruction, submitted a question of law to the jury, viz., as to whether plaintiff had exceeded his authority in both, or either, of the particulars mentioned. Where there is a dispute as to the authority of an agent, it is for the jury to find the facts, but it is the duty of the court to declare to the jury whether a given act comes within, or is in excess of, the agent’s authority: Long Creek Bldg. Ass’n v. State Ins. Co. 29 Or. 569 (46 Pac. 366) ; Anderson v. Adams, 43 Or. 621, 633 (74 Pac. 215).

9. The instruction assumes as a fact that plaintiff’s authority was limited to the initial payment of $50 for each 160 acres, and of $14 per acre purchase price. This, however, is in conformity with defendant’s contention and is therefore in his favor, and not prejudicial to him. It also declares, in effect, that any payments made by plaintiff in excess of either limitation would be without authority^ and this was within the province of' the court, and it was left to the jury to find the number and extent of payments, if any, in excess thereof, which was a question of fact. In that respect the instruction is not open to. criticism.

10. It is also objected that what were “the material facts in connection with the acts of the plaintiff in so exceeding his authority” is a question of law; and, as it is claimed that no. definition thereof was given, it was error to submit such question to the jury. We think the instructions, taken as a whole, clearly informed the jury what were “the material facts” in that respect; but, if they do not, the instruction states a sound principle of law, and, if the defendant desired a more particular definition as to what constituted material facts, it was incumbent upon him to call the court’s attention to the particular grounds upon which the objection was based, so that the trial court might have an opportunity to make a correction, if necessary, but the exception was general, and not specific: Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309) ; Aupperle v. Anderson, 51 Or. 556 (95 Pac. 330). These observations will also apply to the criticism made by the defendant’s counsel to the last part of the instruction as to what acts amounted to a ratification.

11. Error is also predicated upon the ground that the court instructed the jury upon the subject of ratification, when it is claimed the same had not been pleaded and was not within the issues, and that the plaintiff must recover upon the case made by his complaint, or not at all, under the rule related in Neimitz v. Conrad, 22 Or. 164 (29 Pac. 548). If it is incumbent upon plaintiff to plead ratification in order to avail himself thereof, which seems to be contrary to the prevailing rule (16 Pl. & Pr. 904), we think it is sufficiently alleged, not only in the complaint, but in the reply. In the former it is alleged “that from time to time during the performance of the said contract by the plaintiff, and as the said contracts were procured from the said owners, the plaintiff notified the defendant of the said purchases, of the price to be paid for the said lands, of the times of payment, and of the delivery of the said deeds, all in ample time, before the expiration of the times of payment provided in the said contracts. And that from time to time, the defendant, being informed and well knowing of the said purchases and the terms as aforesaid, ratified and approved the same.”- And in the reply, referring to the charge of paying more than $14 per acre, it is alleged “that the said payments so made as .described in the answer were made with the authority and knowledge of the defendant, and were duly ratified by the defendant, he, the said defendant, then and there well knowing that the said payments to the persons set forth in said answer had been made in the sums therein respectively stated.”

12. A similar averment is also made- in reply to the charge of having advanced more than $50 per each 160 acres contracted for. An express averment that plaintiff, with full knowledge of the facts, ratified the act is sufficient, without stating how it was ratified: Harding v. Parshall, 56 Ill. 219.

Many other technical objections are made to the . instructions, but it is sufficient to say that we have carefully examined each of them, and find no merit therein.

It follows that the judgment is affirmed. Affirmed.

Decided July 27, 1909.