Beard v. Kirk

11 N.H. 397 | Superior Court of New Hampshire | 1840

Parker, C. J.

The opinion of the witness, respecting the value of the sled, was not admissible in evidence. 3 N. H. Rep. 349, Rochester vs. Chester; 6 N. H. Rep. 462, Peterborough vs. Jaffrey. He was not a manufacturer of sleds, if that might be supposed to indicate skill, nor was he otherwise possessed of any particular science, or skill, respecting their construction or use. The fact that he had used sleds more than people in general, and had bought and sold many, might serve to show that he had more knowledge respecting the best form and size, and respecting the price at which they could be purchased or sold, than many others ; but this is not sufficient to give him the character of an expert. If it was so, the fact that any person was more familiar with the use and price of any articles than other members of the community generally were, would give him the character of an expert in relation to articles of that description, and admit his opinion in evidence. If there had been such a thing as a market value of sleds at the place, the witness’s knowledge respecting sales might have enabled him to testify to the market value of such a sled, which would involve matter of opinion, to some extent, in making the comparison ; but the evidence would be admissible, taken together, as a matter of fact. (10 N. H. Rep. 131, Whipple vs. Walpole. )

The statement of the witness Adsit, in his cross examination, furnished sufficient evidence of a written authority, from the plaintiff to him, to sell the sled. He said he had a paper authority from the plaintiff, left for him at a place where he usually received orders, directing him to sell, if he could sell for what it was worth ; if not, to bring it back— that he afterwards saw the plaintiff, and told him he had not sold, <&c. No question appears to have been then made respecting his knowledge that the paper was genuine, nor any objection to the proof of its contents, or enquiry whether it could be produced. His statement that he informed the plaintiff that he had not sold it, without .any expression of surprise by the plaintiff, or any denial of his right so to do, tended directly to show that the paper which had been delivered to him was, what it purported to be, an authority from the plaintiff. Nothing was then said about a revocation. On being subsequently recalled, he was examined respecting the signature to the paper, and testified that he was not acquainted with the writing of the plaintiff, and that the plaintiff at first gave him a verbal authority to sell—that, when the sled was broken, the plaintiff said he need go no farther in selling it, and that the paper had been lost. The court, upon this state of facts, could not assume that there was no sufficient evidence, to be left to the jury, on which they might find a written authority to sell. That a paper had existed, which purported to be signed by the plaintiff, and to confer an authority on the witness to sell, and a direction to bring the sled back if he could not sell, which paper he had received at a place where he usually received orders, appeared from his testimony, at each time when he was called. He stated the last time, that it was lost. The fact that he did not know whether the signature was that of the plaintiff, and the fact, (supposing it to be true,) that the plaintiff had previously given him a verbal authority to sell the sled, were not inconsistent with the supposition that the paper was genuine ; and if they had been, the defendant was entitled to have the evidence, as it was first stated by the witness, considered by the jury, and weighed by them along with his subsequent statement, and to argue that they were warranted, upon the whole evidence, in believing that the testimony first given by the witness was true, and the subsequent statement the result of some communication with the plaintiff after his first examination. The court could not, under such circumstances, assume the last statement as the true testimony of the witness, or instruct the jury that it qualified and controlled what he had before stated ; or direct the jury that there was not sufficient evidence, on which they might find a written authority to sell. Nor could the court, upon the last statement, say that the authority, whether written or verbal, was revoked, or that the jury must so find. The whole evidence given by the witness was for their consideration, and they were authorized to believe a part of it, and reject any other part, according to their convictions upon the whole case before them.

It was so left to the jury, with directions that if the plaintiff told Adsit, as he testified the last time, that he need go no further in selling, that would amount to a revocation, as between Adsit and the plaintiff—but with the further direction, that if the authority to sell was in writing, and no notice given of the revocation, and no means taken to prevent a sale by him; and if the written authority was left in his possession, and he exhibited it, and thereby induced a third person to trade and purchase the sled, that would bind the plaintiff.

There was evidence from Moore, that Adsit sold the sled, declaring at the time that he had authority so to do from the plaintiff, and exhibiting a paper, purporting to confer such authority. If that paper was genuine, the plaintiff had constituted Adsit his agent by a written power, which enabled him to hold himself out as possessing authority, after the plaintiff had in fact revoked it. Assuming that the plaintiff did so far revoke it as to say to Adsit that he need not sell, yet as he left the written power in his hands, and gave no notice of the revocation, if Adsit exhibited the power, concealed the revocation, and made a sale, the plaintiff must be bound by his act. The purchaser relying upon the power which the plaintiff had enabled Adsit to exhibit, and believing it still in force, would be dealing with the agent within the scope of the authority he thus appeared to possess; and the plaintiff, in that state of facts, would be precluded from setting up the revocation of the power against the purchaser. (10 N. H. Rep. 160, Davis vs. Lane;) 2 Livermore on Agency 310. Having enabled the agent to commit a fraud, by which either the purchaser or himself must suffer, the loss ought in justice to fall on him. 4 N. H. Rep. 457, and auth. cited; 6 Mass. R. 428, Thurston vs. McKnown.

Judgment on the verdict.