Bryan v. Jackson

4 Conn. 288 | Conn. | 1822

Hosmer, Ch. J.

I am of opinion from the facts apparent on the motion, that O. P. Jackson had an implied general authority from the defendant, to contract on his credit with the plaintiff; and that the testimony of the plaintiff, in this case, was correctly admitted.

Without any express authority having been conferred on him, by the defendant, O. P. Jackson had procured of the plaintiff articles, similar to those which constitute the present book debt. Of the debt thus contracted, the defendant made payment, "without objecting to the same, or giving any notice to the plaintiff, not to trust his son any farther." To his son, the defendant gave a positive prohibition against contracting debts, and placed him under the care of Mr. Rossiter; but no information of this was communicated to the plaintiff. The above facts amount to an authority imparted to the defendant's son, so far as the plaintiff is concerned; and on this supposition, he was warranted to act. "if I once pay," (says Christian, 1 Bla. Com. 430.) for what my servant has bought upon trust, without expressing any disapprobation of it, it is equivalent to a direction to trust him in future;" and this opinion of a very learned lawyer, is in conformity to established decisions. The case of Hazard v. Treadwell, 1 Strange 506. goes the length of the principle declared by the editor of Sir William Blackstone; and in the text, to which that is subjoined, the author has said, "If I send my servant, sometimes on trust, and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority." All these principles have their foundation in unquestionable justice and policy; and, therefore, it is, that by law, where the contracts of another, who is a son or a servant, are recognized, by the payment of them, this is justly considered equivalent to a general command.

The admitted testimony of the plaintiff to the declaration of the defendant, after the account in question had accrued, and had been delivered, if competent, was unquestionably relevant. It seems, that the defendant was restrained from giving notice to the plaintiff not to trust his son, lest he should hurt his feelings; that with the bill he found no fault; but wishing to stop his son's extravagance, he had declined paying it; and that he had given money to his son to pay the plaintiff's bill, which he had expended. Testimony of this description weighed something; and was proper for the consideration of the jury, upon the enquiry, whether authority had been given to contract the debt in controversy. Indeed, had the same evidence been given, by disinterested witnesses, it would have been considered, on all hands, as free from objection. The precise question, is, Whether the plaintiff is a competent witness to the defendant's acknowledgments of indebtedness, or to facts from which indebtedness may be inferred. The cases of Punderson v. Shaw, Kirby 180. Peck v. Jones, Kirby 289. Johnson v. Gunn, 2 Root 130. and Bradley v. Goodyear, 1 Day 104. in my opinion, have no bearing on the matter in controversy. What is not a legal charge on book, these cases determine; but that enquiry is not before the court; as the articles delivered, unquestionably, were proper items of book debt. The question relates, not to the nature of the things charged, but to the competency of the witness to substantiate them. In Johnson v. Gunn, before cited, it was explicitly adjudged, that the plaintiff might testify to an acknowledgment of the debt, made by the defendant; and, by necessary consequence, he may give evidence to facts presumptive of an acknowledgment, which is the present case. The late Ch. J. Ellsworth, for whose decisions I entertain the highest deference, in the case of Phenix v. Prindle, Kirby, 209. expressed an opinion, that the testimony of the plaintiff in book debt should be restrained to the quantity, quality and delivery of the articles charged. This opinion, conformable as it is, to the principle, which originated the testimony of the parties on book, has not the support of precedent or practice. It has been usual to consider the plaintiff in an action of book debt, as a general witness; and to admit his testimony to all the facts and circumstances, necessary to make out his case. The "parties and other persons interested," are spoken of collectively, in the statute concerning book debts, without any discrimination; nor is it intimated, that in relation to the extent of their testimony, they are distinguishable from other witnesses. I am inclined to lay it down as a general rule, that, when proper articles are charged on book, the parties, quoad the book debt, are admissible, like all other witnesses, to testify freely and fully, in support or confutation of the account.

The other judges were of the same opinion.

New trial not to be granted.