44 Barb. 554 | N.Y. Sup. Ct. | 1865
The jnincipal question to be determined in this case is whether the plaintiff was employed
In opposition to this testimony,^ the defendant himself swore, substanially, that the written contract did not embrace . all the items of the agreement between him and Bond, and that there was a verbal agreement between them, which in terms embraced the putting in of the gas pipe and the fixtures. And his testimony upon this point is corroborated by
From this summary statement of the main facts developed upon the trial it would seem that there was at least some evidence to establish that Bond was the agent of Smith, for the purpose of making the contract with the plaintiff, and that the contract was made by Smith’s authority; that he afterwards approved of it, and promised to pay the plaintiff’s bill for the work done and the materials furnished.
It is by no means entirely clear that there was no evidence to show that the work done by the plaintiff was not embraced in Bond’s contract. As I understand Bond’s testimony, he swears it did not belong to him to pay, and was not a part of his contract, and that there was no other agreement than the written one offered in evidence, which clearly did not embrace it.
There are some other circumstances in the case which would look somewhat as if the plaintiff might have trusted Bond alone; particularly the fact that the first bill was made out against him; but these were all proper matters to be considered by the jury in looking at the whole testimony presented, and even though they may throw some doubt and distrust over the plaintiff’s theory, and might if we were called upon to decide where the balance of the evidence was, cause some hesitation, yet they only present a case where the evidence is conflicting and the jury have passed upon it after a full consideration of the whole facts of the case.
The rule is too well settled at this late day to admit of
The testimony introduced upon the trial was certainly conflicting, involving a variety of facts and circumstances, and contradictions of witnesses, which the jury who heard the evidence and saw the witnesses were entirely competent to decide, and perhaps better qualified in this respect than an appellate tribunal. There is nothing to show that they acted unfairly, or were improperly influenced; and I think there was no such preponderance of evidence as to authorize or justify the interference of the court upon that ground.
I think it was proper to prove the declarations made by Bond to the plaintiff, in making the contract.. It was claimed that Bond was the agent of the defendant, and the proof was offered to show the contract made by the plaintiff with Bond as the agent of .the defendant. The defendant had told the plaintiff to go and see Bond, which he did, and 'the conversation related to that interview. There was some evidence to show the agency, and as the proof offered related to the acts of' the agent in employing the plaintiff to do the work not embraced in the written contract, it was proper as declarations of the agent, relating to the subject matter of his agency. (1 Cowen & Hill’s Notes, 180, 181.)
To some extent the same rule which applies to the declarations made by Bond to the plaintiff would be applicable to the conversation between Bond and Coventry. It had a bearing upon the question as to Bond’s agency, and I think
I am also of the opinion that no error was committed by the inquiry made of the witness Bond as to the reason why he indorsed his name upon the plaintiff’s bill. According to the testimony of the plaintiff the defendant had agreed to pay the bill if thus indorsed, and the evidence tended to show the understanding between the witness and his principal, the defendant, to the effect that this indorsement was a mere .certificate from the agent to the principal, that the work had been done, and was hot to be considered as an order of Bond upon the defendant to pay the plaintiff out of the moneys due to Bond.
I have examined with care the several decisions of the county judge excluding evidence' offered on behalf of the defendant, and I am satisfied that in these rulings, no error was committed. I do not consider it necessary to discuss them separately, but it strikes me that the evidence offered was not material, and had no particular hearing upon the issues involved in the case. The objections to some of the offers made, if at all important, were also obviated by testimony 'which was subsequently introduced.
As I am uuable to discover any error upon the trial of the cause, I am necessarily brought to the conclusion that a new trial must be denied, and the judgment of the county court must be affirmed, with costs.
Uogcboom, Peckhamand Jftiler, Justices.]