Grim v. Bonnell

Mr. Justice Woodward

delivered the opinion of the court, May 10th 1875.

At the point which had been reached in the trial of this cause, when the declarations of George Wenner were admitted in evidence, there had been no proof to warrant the assumption that he had ever been authorized to act as agent for the defendant. The witness Gurnee and the plaintiff had sworn, that Wenner and the defendant had been together at the plaintiff’s store, and that some negotiation was had for the purchase of grain. The defendant declined to buy, and in leaving, he said, according to the statement of Gurnee, “ if he made up his mind to buy, he would leave the order with Mr. Wenner; he would leave instructions with Mr. Wenner whether to buy or not;” or, as stated by the plaintiff, “ if he concluded to take it, he would have George come there and tell us so ; give us the order.” This evidence did not justify the admission of proof of the statements of Wenner. Such proof was entitled to he received only on the theory that he had been authorized to contract for the grain on behalf of the defendant as his agent, and there had been nothing to show that a word had passed between them on the subject after they left the plaintiff’s store. Indeed, throughout the trial, there was nothing to indicate the existence of an agency, except what could be implied from the declaration of Wenner in his conversation with the plaintiff. “An agent is competent to prove his own authority when it is by parol, but his declarations in pais are not proof of it; and though they become evidence as part of the res gestee, if made in the conduct of the business intrusted to him, yet other evidence must first establish his authority to speak before his words, shall bind his principal Jordan v. Stewart, 11 Harris 244. Agency cannot be proved by the declarations of the agent without oath, and in the absence of the party to be affected by them: Clark v. Baker, 2 Whart. 340: Chambers v. Davis, 3 Id. 44.

The memorandum which the plaintiff testified he received from Wenner when the contract for the grain was made, was also improperly admitted. The record does not show in whose handwriting the memorandum was. It may or may not have been in Wenner’s, but that is indifferent, for it could only have been made competent evidence by proof, either that the defendant had written it, or that he had authorized Wenner to act as his agent. * The first and second specifications of error are sustained.

The testimony specified in the third, fourth and sixth assignments of error should have been received. The defendant had sworn that he had given no order, verbal or written, for the grain purchased from the plaintiff. Wenner was indebted to him in a sum exceeding $900. When the car load of grain was bought, the plaintiff had been requested to ship it to the defendant. The offer was to prove that at the time of the delivery, the defendant bought the grain of Wenner, and gave him a credit on his books for the amount which had been agreed upon as its price, and that Wenner had said about the middle of October 1872, that he had a car load of grain at Ereemansburg, and had requested the defendant to unload it and give him credit on his books. The defendant’s day-book was offered to show the fact that the credit was given on the 18th of October 1872. Now, keeping in view the defendant’s positive denial of any authority in Wenner to bind him, there was nothing in the position of. the parties at the point of time to which these offers related, to create a motive to fabricate testimony or falsify facts. The grain had been bought by Wenner in the name of the defendant, and he was selling it as his own. It had been shipped, but the letter of the plaintiff demanding payment had not been received. How could the evidence offered be treated as res inter alios ? It would have explained the defendant’s possession of the grain. By the plaintiff’s case, he stood charged with obtaining and holding another man’s property, and with refusing to pay for it. Why could he not show that he had taken it in payment of a debt ? The proposition was to lay the exact character of the transaction before the jury. All the items of evidence embraced in the three offers, were res gestee, for théy were eotemporaneous with a material fact in the cause— the delivery of the grain — and were so connected with it as to illustrate its character. It was error to reject them.

The rejection of the letter of Wenner, to which the fifth assignment relates, was right. It was sent from Reading, and although dated on the 18th of October 1872, must be presumed to have been received after the delivery had been accomplished. Declarations, to become part of the res gestee, must have been made at the time of the act done which they are supposed to characterize, and calculated to unfold the nature and quality of the facts they were intended to explain: Enos v. Tuttle, 8 Conn. 250. So far from harmonizing with the other testimony offered, the letter introduced an element entirely inconsistent and in conflict with it. If the fact which it disclosed, that the grain bad been bought in his name had been brought to his notice before delivery, it is to be assumed that the defendant would not have accepted it. The letter would have been admissible only as the act of a participant in a combination by Wenner with the plaintiff to defraud the defendant, and not the slightest suggestion of the existence of such a combination has been made throughout the cause.

There was no such error in the answer of the court below to the defendant’s point, as, of itself, to require a reversal of the judgment. The statements proved to have been made by the defendant in his conversation with Gurnee, were some evidence that he had bought the grain of Wenner and had credited him with its price. By the rigid, rejection of the other testimony, however, they stood alone, and, without any corroboration, they can scarcely be held to have amounted to proof substantial and significant enough to have supported a verdict.

Judgment reversed, and a venire facias de novo awarded.-