Augusta Amateur Musical Club v. Cotton States' Mechanics' & Agricultural Fair Ass'n

50 Ga. 436 | Ga. | 1873

McCay, Judge.

Under the frequent rulings of the Court, a non-suit can only be granted when the plaintiff has furnished no evidence authorizing a verdict. We do not think this is the case. Two witnesses swear positively that the service was performed as claimed, and that it was worth the amount set forth in the bill of particulars. True, there is other evidence going to cast doubt and confusion over this evidence. It is, nevertheless, very clear that the plaintiffs did act as musicians for ¡several days at the defendant’s fair, and that they were recognized as musicians by the officers in authority at the fair. Whether they were mere volunteers, or went there in the employment of somebody else than the defendant or its agents, is in truth the principal question. Without doubt, they thought they were playing for the defendant, and if they were not they were imposed upon by Mr. Cohen, who represented to them, in writing, that he was chairman of a committee appointed by the defendant. In our judgment, it was within the scope of the authority of such a committee to procure music, and to agree to pay for it. When Mr. Cohen says he had no such authority, we presume he means express authority, but if he was one of the appointees of the defendant to make preparations for the coming fair, the authority to employ musicians would be implied in the committee, and the act of their chairman might fairly be taken as the act of the committee itself. Mr. Cohen says he did not contract with them as chairman of the defendant’s committee; but the fact is he did so contract, for the letter which he admits was written by him, not only styled him the chairman of defendant’s committee but appeals to them for a low charge, in consideration that the Fair Association is itself acting liberally in giving the entertainment. Were this any other corporation or individual, the fact that the plaintiffs played at the fair, occupied seats on the music stand, and were under the orders of the officers, would itself be sufficient to charge them. And prima fade, we think it does charge them. Nor does the statement of Mr. Cohen, that he acted as chairman of some other committee in employing them, conclusively rebut that presumption. By his letter, written at the time, and as part of the transaction, it is apparent^that this was a mistake. Mr. Cohen has evidently forgotten what he did do and how he acted. That he was the plaintiffs’ witness does not make what he now says conclusive. Is a man bound — concluded—by the misfa7ce of his witness, if he has other proof showing the mistake ? This is not discrediting his witness. We think the letters ought to have been admitted and the case submitted to the jury for their finding. Altogether the evidence made a sufficiently prima fade case to put the defendant on his defense.

Judgment reversed.