67 Iowa 350 | Iowa | 1885
The principal question in the case is one of fact. It appears that the railroad company did not contract directly with the parties who furnished ties for the road. One Ball made contracts for the purchase of all the ties for the line from Des Moines to Osceola. The plaintiff' made his contract directly with one Thompson, who was authorized by Ball to make purchases. The defendant claimed, in its answer and upon the trial, that Ball bought and furnished the ties as a contractor, and not as agent of the company, and that the company, having settled with and paid Ball in full for all ties furnished by him, was not liable to the plaintiff. The plaintiff did not avail himself of the provisions of the mechanic’s lien law, and under the issues made in the case it was incumbent on him to prove that Ball was the mere agent
This evidence, which was objected to, tended' to .show that Ball was acting merely in the capacity of agent. The first witness examined in the case stated that Ball, in answer to the question whether he (Ball) would have any work for the witness to do, replied as follows: “I can’t tell. Harding and Stivers will be here next week to my house and I can let you know then. Stivers holds me back, and Harding tells me to go ahead and buy timber.” The defendant moved to strike out this evidence, and the motion was overruled. Stivers and Harding were members of the executive committee of the defendant. If it were conceded that Ball was the agent of the defendant to purchase ties, his acts and declarations pertaining to contracts made by him within the scope of his agency would be competent evidence and binding upon the defendant. But in the case at bar the very issue presented to the jury was whether Ball was the agent of the defendant. And it is not. claimed by .the plaintiff that agency can be shown by the acts and declarations of the alleged agent. That this is the law cannot be questioned. If the law were otherwise, one person might be held liable by proving the acts and declarations of another without any
For the error in admitting this evidence, the judgment of the court below will be
Reversed.