114 P. 561 | Ariz. | 1911
The complaint of Kellam alleged that the plaintiff at the special instance and request of the defendant delivered and turned over to the defendant a certain freighting outfit which was accepted by the defendant as in good order and condition, and that the defendant agreed to pay the plaintiff for the use of the freighting outfit at certain specified rates for each span of horses and for a wagon so delivered. The complaint further alleged that it was agreed between plaintiff and defendant that the contract for the use of the freighting outfit should continue until terminated upon notice by either party and until the expiration of thirty days after the giving of such notice; that it was also agreed and understood that, in case any of the horses so hired should die or be killed while employed under the contract, the defendant should pay the plaintiff the sum of $165 per head for each horse; that, with the exception above noted, the freighting outfit should be returned to the plaintiff at the expiration of its service in as good order and condition as when received, and, in case any part thereof , should be lost or destroyed, it should be replaced by the defendant or paid for at its just and reasonable value. The complaint further alleged that during the pendency of the contract one of the horses died, and that the defendant was indebted to the plaintiff in the sum of $165, the agreed value of said horse, and was further indebted
Appellant claims that the verdict is not sustained by the evidence, in that the plaintiff offered no sufficient evidence of any authority'- from the defendant or anyone to enter into any such contract as alleged by the plaintiff. The agreement in question was an oral one made by the plaintiff with one Masson, who was acting as the general manager of the defendant company. It is claimed by the' appellant that, inasmuch as there is no evidence showing any direct authority in Masson
■ It is further contended that the trial court erred in admitting in evidence an alleged memorandum not signed by any of the parties to the suit, and, as claimed by the appellant, not signed by anyone authorized to bind the appellant, or not made by anyone with authority from the defendant concerning any of the issues in the case. The main issue in the ease was whether or not the defendant was obligated to pay the plaintiff the sum of $165 for a horse that died or was killed-while in the defendant’s service and during the life of the contract. The plaintiff testified that the agreement as stated by Masson was: “We return your outfit in as good condition as when we receive it outside of the natural wear and tear, and, in case any horse dies or gets killed while on the work, we pay for the value of the horse”; that Masson told him that, if the outfit was satisfactory to his team superintendent, Trenberth, the same would be accepted; that, in accordance with the understanding with Masson, the outfit was submitted to Trenberth, and that Trenberth valued the stock as worth $165 a head; that at the time of his conversation with Trenberth one Pysell took a list of the equipment of the freighting outfit; that Trenberth appraised the horses at $165 a head.
“Q. I will ask you if Mr. Pysell didn’t make a memorandum of that matter at that time ? A. He made a memorandum of the stuff turned in and the valuation of the stock.
“Q. Did you tell him what to put in that memorandum? A. I did.
“Q. Who was Mr. Pysell, what was he doing there? A. He was timekeeper.
“By Mr. Anderson: We object to all this, what Mr. Pysell did, because the plaintiff testified that he had nothing to do with Pysell or with Trenberth relative to the terms of the contract.
“By the Court: The objection is overruled.
“By Mr. Clark: Q. You know Mr. Pysell’s handwriting, do you not, Mr. Trenberth? A. Yes; I think that is Mr. Pysell’s handwriting.
“Q.' Examine that, and state whether or not that is the memorandum that was made at the time? A. I tbinV that is the outfit.
“By Mr. Clark: We ask now that that be marked ‘Plaintiff’s Exhibit 1.’
“By the Court: By that being the outfit do you mean that is the list made at the time ? A. Yes, sir; when it was turned over to the company.
“By Mr. Anderson: We object to it.
“By Mr. Clark: We ask that it be marked ‘Plaintiff’s Exhibit 1.’
“By Mr. Anderson: We object to it as immaterial, irrele*298 vant, and incompetent, and as not tending to prove any of the issues in this case, and showing no authority by the Arizona Power-Company by a competent agent duly authorized by contract.
“By the Court: The objection is overruled. It may be admitted. ’ ’
The document thus received was a schedule of the stock and outfit of the plaintiff, and contained, among other items, an item ‘ ‘ 2 chains 25' long, ’ ’ which item was an item in dispute in the case, one of such chains, according to the allegations of the plaintiff, not having been returned by the defendant. The document in question, therefore, was relevant and material so far as this disputed item was concerned and was competent as proof of the delivery thereof, it having been made by Pysell under the direction of the representative of the defendant. The document, however, contained at the ■bottom the following notation by Pysell: ‘ ‘ The average value of his horses was estimated by himself & Mr. Trenberth at $165.00 per head. ” The objection now made by the appellant to the introduction of this document goes not to its relevancy or materiality with respect to the items of the outfit, but with respect to this notation by Pysell as to the valuation of the horses, it being claimed by the appellant that it was the mere hearsay statement of an outsider with respect to the alleged fact in dispute and therefore incompetent. If it be conceded that the statement in question was a mere voluntary statement of Pysell’s and not a notation directed to be made by Trenberth, with respect to which the evidence leaves us in doubt, nevertheless we think the appellant may not successfully claim that the judgment should be reversed on account of the introduction of the document. The document itself, in part at least, was competent. The court’s attention was not directed to the statement that is now objected to. No motion was made with respect to the introduction of that part of the document or that that part of the document should Be withdrawn from the consideration of the jury. The objection to the document was that it was incompetent because Trenberth had no authority to bind the defendant company, and not that it contained a statement that was not proper to go before the jury. .Where a document is in part relevant and
It is further claimed that the trial court erred in refusing to admit certain evidence offered by the defendant. Numerous rulings of the court in this respect are objected to. One is that the defendant was improperly precluded from proving
It is claimed that certain instructions given by the court were erroneous in respect to the authority of Masson to bind the defendant company, but under the admissions in the answer and the evidence we think the appellant may not predicate reversal thereon.
A reversal is also sought on the ground of improper conduct on the part of the plaintiff in paying a witness the sum of $100 for his testimony. The matter was brought before the trial court on the motion for a new trial upon affidavits by the defendant that this sum had been improperly paid a witness for his testimony. Payment of this sum to the witness was denied by the plaintiff, and the motion for a .new trial was refused by the trial court. "Whether or not the $100 paid by the plaintiff to the witness was a proper payment was not determined by the trial court, nor, indeed, was the fact of whether or not such sum was ever paid determined by the trial court, except so far as from the denial of the motion for a new.trial we may infer that the trial court determined the matter adversely to the appellant’s claim. In any event, the record in that regard before us is not such as to enable us to pass upon the facts.
Upon an examination of the whole record, we are of the opinion that the issues framed by the pleadings were properly presented to the jury, and that there is nothing in the record that would warrant us in disturbing their verdict, and the judgment is therefore affirmed.
DOAN, CAMPBELL and LEWIS, JJ., concur.