Proctor & Gamble Co. v. Blakely Oil & Fertilizer Co. , 128 Ga. 606 ( 1907 )

Fish, C. J.

(After stating the facts.)

1. Counsel for the defendant in error raises a question of practice, by contending that “where plaintiff fails to make out a case, and defendant introduces testimony, and the court directs a verdict for defendant, the plaintiff, who has had an opportunity to dismiss or take a voluntary nonsuit, can not successfully complain of the direction of the verdict.” This contention is not sound. In this ease the plaintiff had to prove a written submission to arbitration, before introducing the award, which was the basis of its suit, and when the court excluded from evidence the document by which plaintiff sought to show such submission to arbitration, a recovery by the plaintiff was rendered impossible. Plaintiff clearly had the right to have the ruling which dealt a death blow to its ease reviewed and, if erroneous, overruled. It would have lost this right if it had voluntarily dismissed its case, or if (what would have been equivalent to the same thing) a non-suit had been granted upon its own motion. In our practice there is no such thing as a voluntary nonsuit, with right of appeal. “Error will not lie to the decisions of the court below, where the party, subsequent to the decision, voluntarily dismisses his case.” Mott v. Hill, 7 Ga. 79; Dannelly v. Speer, Ib. 227. “A writ of error does not lie from a voluntary nonsuit.” Kent v. Hunter, 9 Ga. 207; Jones v. Mobile & Girard Railroad, 64 Ga. 446; U. S. v. Evans, 5 Cranch, 279; Evans v. Phillips, 4 Wheat. 73; Cossar v. Reed, 17 Q. B. 540. The ruling in the last-cited Georgia case was made notwithstanding the fact that the language of the non-suit was as follows: “At this term of the court comes plaintiff and takes a nonsuit of said case without prejudice and with leave to except to any errors.” The general rule is that “Where a judgment is consented to in the trial court by the party complaining, his writ of error will be dismissed.” Zorn v. Lamar, 71 Ga. 81. See also Killen v. Compton, 60 Ga. 117.

If the plaintiff had dismissed its action, or voluntarily taken a nonsuit, all that it could afterwards have done toward the enforcement of the alleged award would have been to have brought the suit over again, taking the risk of again having its evidence ruled out and a judgment in its favor thus rendered impossible. While it could not sue out a writ of error until a final judgment was rendered against it in the trial court, it had the right, to simply wait until such judgment was entered, and then bring the ease here, assigning error both upon the judgment and the antecedent rulings which rendered it inevitable. So far. as the right of plaintiff to sue out a writ of error was concerned, the result of allowing the defendant to introduce evidence and then directing a verdict in its favor was the same as if .the court had ordered a nonsuit, when the plaintiff, under the ruling which was absolutely fatal to its ease, declined to jxroeeed further. In either instance, a final judgment against the plaintiff would have been rendered, by order of the court, because there was no evidence upon which a verdict in the iilaintiff’s favor could be predicated, the absence of such evidence being due to a prior ruling of the court, which the plaintiff would have the right to have reviewed, in order that, if erroneous, it might be set aside and-the plaintiff allowed, upon a subsequent trial, to present the excluded evidence. In Oscanyan v. Arms Co., 103 U. S. 261, 264, where the trial court directed a verdict for the defendant, because the opening statement of counsel for plaintiff disclosed that the contract sued on was an illegal one and, therefore, void, Mr. Justice Field said: “Involuntary nonsuits not being allowed in the Federal courts, the course adopted was the proper proceeding. The difference in the two modes is rather a matter of form than of substance, except in the case of a nonsuit a new action may be brought, whereas in the case of a verdict the action is ended, unless a new trial be granted either upon motion or upon appeal.”

There is no merit in the contention that the plaintiff could not except to the direction of the verdict for the. defendant, because it did not offer to introduce the award in evidence. As, under the ruling excluding proof of the submission to arbitration, the plaintiff could not possibly recover, it would have been useless to proceed further. Miller v. Speight, 61 Ga. 460; Vaughn v. Burton, 113 Ga. 103. This case, upon its facts, is clearly distinguishable from Thompson v. Etowah Iron Co., 91 Ga. 538, which is cited •by counsel for defendant in error. There the direction of a verdict for the defendant did not follow- the exclusion of evidence by which the plaintiff might have made' out his case; but it came after the plaintiff, With fair and full opportunity to present his case to the jury, had shown that, with all-his evidence in and none introduced by defendant, a legal recovery by him was impossible. Here a verdict was directed for the defendant after the court had excluded evidence' offered by the plaintiff, without the introduction of which it could not possibly recover; and the plaintiff by dismissing its action, or voluntarily submitting to a nonsuit, would have lost the right do have the ruling which shut out its evidence reviewed and, if erroneous, overruled. In like manner, this case is distinguishable from Seymour v. National Building & Loan Association, 116 Ga. 285, where it was held that it was not erroneous to allow the defendant to withdraw its motion for a nonsuit, after the judge had orally announced that he would sustain it, and "then, as the evidence was such as to demand a finding for the defendant, there was no error in directing a verdict accordingly.”

2. There was no error in excluding the testimony of Macdonald, nor in ruling out that of Wacher, as to samples of oil drawn from the two tanks of oil sold by the defendant to the plaintiff. Macdonald testified that he had no independent recollection of the matter, but could depend upon a memorandum made at the time the samples were drawn. He did not state that he testified from his memory, as refreshed by the memorandum, nor that he made the memorandum himself, nor that when the facts were fresh in his memory he knew the memorandum to be correct. Whether he had ever read this memorandum, when he had a distinct recollection of the facts to which it referred, and then knew, from such independent recollection, that it was correct, did not appear from his testimony. "A witness can not, without finally testifying from his recollection of the facts, swear from a written memorandum without showing that he made the memorandum or at some time knew it to be correct.” Lenney v. Finley, 118 Ga. 427; and cit. Of course, under this rule, the testimony of Wacher was property excluded, because when asked if he had an independent recollection of these two samples, or depended for his testimony upon memorandum or other sources, he merely replied: "I answered from memorandum.”

3. We think the'court erred in excluding from, evidence the paper offered as a copy of the alleged agreement for arbitration. Of course, before this paper was admissible, the plaintiff had to show the existence of an original, and that such original was genuine, and also that such original was inaccessible to its diligence. The existence of an original of the copy offered in evidence and the further fact that it was in the official custody of N. S. Graves, secretary of the Memphis Merchants Exchange, at Memphis, Tennessee, were clearly proved. And the defendant admitted that if a genuine original did exist in the official custody of Graves, at Memphis, Tennessee, a sworn copy thereof would be the highest and best evidence, as the original was beyond' the jurisdiction of the court. So the question was whether there was sufficient proof of the genuineness of the original paper which, was in the custody of Craves, at Memphis, to admit secondary evidence of its contents. To prove this original to be genuine, the plaintiff had to prove its execution by the defendant; which the defendant denied. And to prove its execution by the defendant, the plaintiff had to prove, not only that the paper had been executed in the name of the defendant, but also that the person who so executed it was authorized to do so. Plaintiff sought to establish both these facts by proof of circumstances from which they could be legitimately inferred. It appeared from the evidence that the original paper from which the document offered in. evD dence had been copied was unattested. Plaintiff did not have access to it, and so could not resort to proof of handwriting for the purpose of proving by whom the signature purporting to be the defendant’s was made. It had to prove this fact, as well as the authority of such person to execute the instrument for the defendant, by circumstances, or abandon its case. We-know of no sufficient reason why the execution of such a written instrument may not be proved by circumstantial evidence, when direct evidence of its execution is not attainable; nor why, when proof of the handwriting of the purported maker can not be resorted to, other circumstances may not be proved from which its execution by him may be legitimately deduced. In 2 Cowen & Hill’s Notes to Phillips on Evidence, 421-2, it is said: "Where no direct testimony on the point of execution or former existence of an instrument appears to be attainable, the fact may be proved by circumstances.” In Wells v. Iron Co., 48 N. H. 491, the court, in laying down rules for the introduction of secondary evidence of the.contents of written instruments, said: "But when witnesses can not be produced, the admissions of the opposite .party of the existence of such documents may be resorted to, and when that and all other direct evidence of the execution or former existence of such instruments is wanting, the fact may be proven by circumstances.” To "' the same effect, see McLaurin v. Talbot, 2 Hill (S. C.) 525; Lessee of Allen v. Parish, 3 Hamm. (Ohio) 107. See, also, as bearing on the question under consideration, Sicard’s Lessee v. Davis, 6 Peters (U. S.), 124; U. S. v. Sutter, 21 Howard (U. S.), 170. In the first of these Federal cases Chief Justice Marshall, in discussing the provisions of a Kentucky statute respeeting conveyances, and after pointing out that in a suit between the parties to a deed “Proof of sealing and delivery would alone be required, and the acknowledgment of the fact by the party would be sufficient proof of it,” said: “If the original deed remained in existence, proof of the handwriting, added to its being in possession of the grantee, would, it is presumed, be prima facie evidence that it was sealed and delivered. . . But the deed is lost, and positive proof of the handwriting is not to be expected or required; the grantee must depend on other proof.” In the case last cited, Mr. Justice Campbell said: “We agree that the rule of law which requires the best evidence within the power or control of the party to be produced should not be relaxed, and that the court should be satisfied that the better evidence has not been wilfully destroyed nor voluntarily withheld. But the rule on the subject does not exact that the loss or destruction of the document of evidence should be proven beyond all possibility of a mistake. It only demands that a moral certainty should exist that the court has had every opportunity for examining and deciding the cause upon the best evidence within the power or ability of the litigant.”

In our opinion, as already intimated, the circumstantial evidence relied on to show the existence of a genuine original of the copy agreement for arbitration was sufficient to authorize the introduction of such copy in evidence. Of course, the admission of this document in evidence would not preclude the defendant from contesting the existence of a genuine original agreement for arbitration, but this, like all other issues of fact arising in the case, would be for the determination of the jury upon the whole evidence before them. Graham v. Campbell, 56 Ga. 258. Let us consider the circumstances disclosed by the evidence tending to establish the plaintiff’s contention as to the existence of a genuine written agreement for arbitration. In the trade between the parties it was agreed that any differences arising between them under the contract should be subject to arbitration by the Memphis Merchants Exchange; and this agreement on the part of the defendant was made for it by McDowell, its secretary and treasurer, who represented it in negotiating the trade. Of course, this stipulation in the contract did not have the effect of submitting the differences which subsequently arose between the buyer and the seller to the arbitration of the Memphis Merchants Exchange; but giving both parties credit for good faith in entering into a contract containing this stipulation, its presence therein is a circumstance pointing to probable arbitration by such exchange, in the ■event of differences arising under the contract, which the parties failed to settle among themselves. Differences did arise which the parties failed to settle; and in the correspondence which ensued between them relative thereto, each referred to Memphis arbitration, as if it were a matter understood between them, as a means of settling such differences. And when this correspondence showed that there was no likelihood of an agreement between the parties, the defendant, in a telegram to the plaintiff, wherein it declined the plaintiff’s proposition for settlement, declared that it would "arbitrate [at] Memphis;” and on the same day wrote to the plaintiff a letter confirmatory of this telegram, and describing it as one declining plaintiff’s offer of settlement "and advising that Mr. Julian Field, of Atlanta, would take the matter up looking to Memphis arbitration.” As this letter, which was simply confirmatory of the telegram and bore the same date, was written for and in the name of the defendant by McDowell, its secretary and treasurer, the strong probability is that he sent the telegram also. After the defendant had been informed of the result of the arbitration, it, still acting through McDowell, its secretary apd treasurer, Avrote to the plaintiff another letter, wherein, after at considerable length setting forth, explaining, and seeking to justify its contentions, it made the significant statement and admission that it had "expected some relief from Memphis.” In view of what had gone before, this must have meant that the defendant had expected some relief from the Memphis arbitration. How it could have expected ■some relief from Memphis arbitration, if it had never agreed with the plaintiff to submit the questions at issue between them to such ■arbitration, is difficult of comprehension.

The defendant acted through its agent, its secretary and treasurer, McDowell, in making the contract of sale and stipulating for •arbitration of any differences between the buyer and seller by the Memphis Merchants Exchange; and subsequently, Avhen such differences did arise, continued to act through such agent, and through him rejected plaintiff’s proposition of settlement and promised to arbitrate the matter at Memphis; and, after the arbitration, still .spoke through this same agent “as its mouthpiece, declining to settle in accordance with the award and expressing its disappointment at the outcome of the arbitration. Such, at least, are conclusions, which may be fairly drawn from the evidence. McDowell, being-still the secretary and treasurer of the defendant company, was-placed upon the stand as a witness by the plaintiff, and although he testified that he had no recollection of ever having signed the defendant’s name to an agreement for arbitration similar to the paper purporting to be a copy of such an agreement, he, upon the correspondence between the parties being read in his hearing and. upon being shown the letters which he wrote for the defendant to the plaintiff, stated that although he had no independent recollection of signing the defendant’s name to such agreement, he must, from these letters, have done so, and his best opinion was that he did. In view of these circumstances disclosed by the evidence, the judge erred in excluding the alleged copy agreement for arbitration.

4. While the plaintiff failed in its effort to prove that the samples of oil which it sent by express to N. S. Graves, at Memphis, Tennessee, to be used by the arbitrators as evidence upon which to-base, their award, were drawn from the two tanks containing the-oil sold by the defendant to the plaintiff, this fact would not necessarily have prevented a recovery by the plaintiff. Assuming thafr the parties had really agreed in writing to submit the matter in. controversy between them to arbitration, and that their agreement to do so was in the language of the excluded document, it follows-that the evidence to be submitted to the arbitrators was to consist of samples of oil drawn by plaintiff from these two tanks and “marked P & G 85 and 532, Blakely, Ga., April 7th,” and furnished by the plaintiff to the arbitrators. Upon proof of a legal submission to arbitration and an award in accordance therewith, all presumptions' are in favor of the fairness and validity of the award, and of the performance by the arbitrators of their duties Abbotts Trial Ev. Civ. Cas. (2d ed.) 575; 3 Cyc. 728. See, also, Littleton v. Patton, 112 Ga. 438 (3). If the defendant really" agreed that the arbitrators should act on samples of oil submitted, to them by the plaintiff, without providing for any evidence of the genuineness of the samples so furnished to be submitted to them, there may be some question whether it was incumbent on the arbitrators to require the plaintiff to submit such evidence; but there can be no question of their competency to decide upon its sufficiency, if produced. If it was the duty of the arbitrators to require the plaintiff to submit such evidence to them, the presumption is that they did so. So, if the plaintiff proved the submission as alleged, and the award by the arbitrators appointed, as declared on, the presumption would arise that they had examined and tested samples of oil submitted to them by the plaintiff, and that they had before them satisfactory evidence that these samples were drawn from the tanks containing the oil sold by the defendant to the plaintiff. So all that plaintiff had to do to make out its case was to prove the written submission to arbitration as set forth by its petition, and the award which it alleged had been the result of such submission. Then, unless the defendant successfully impeached the award, a verdict and judgment in favor of the plaintiff would follow as a matter of course.

Judgment reversed.

A.1I the Justices concur.