| Ill. | Jan 15, 1864
delivered the opinion of the Court:
Was there such a privity between Hammer and Goodrich as authorized the depositions and proceedings in the replevin suit to be read in evidence in this case ? It appears that Goodrich placed the mules in the hands of Hammer as his agent, and whilst they were so held, Pearson instituted a replevin suit against Hammer for their recovery. Hammer took the deposition of Whitsit, from whom both parties to this suit claim to derive title to the mules, to be read in evidence on the trial of the replevin suit. Pearson had due notice of the time and place of taking this deposition.' The suit was dismissed, and Whitsit died after his deposition was taken. Afterwards, plaintiff in error brought this suit to recover the value of the mules, and on the trial below offered to read the proceedings and the depositions of Whitsit in the replevin suit as evidence in this case, but it was rejected by the court below, which decision of the court is, amongst others, assigned for error.
In affirmance of the judgment it is urged that this evidence is incompetent, because the parties to the two actions were not the same, nor the issues the same. It will be perceived that the question in both cases was the ownership of the property in controversy. In the replevin suit defendants in error sued to recover the property, and Hammer plead property in plaintiff in error. That issue directly presented the question, whether property belonged to plaintiff or defendants in error. And the deposition of Whitsit was taken to prove the truth of that plea. It is then seen that, under this issue in the replevin suit, the question was the same, and between the same parties, as in this suit. It appears that Hammer was merely the naked bailee of plaintiff in error, and had that issue been tried and found in favor of Hammer, it would have been conclusive upon all parties to that suit. Had such a finding resulted from a trial, and Hammer had restored the property to plaintiff in error, it would have barred a recovery by defendants in error of this property from plaintiff in error.
Hammer being the naked bailee of plaintiff in error, that created a direct privity of title between them. When such a relation is shown, the acts of the agent, within the scope of his authority, are binding upon his principal. In this case the taking of the deposition and the defense of the suit was clearly within the power of the agent. It is true that all the parties to the two suits are not, nominally, the same upon the record, yet they are the same in interest. We are, therefore, of the opinion that this deposition fell within the rule laid down in Weird v. King, 19 Ill. 301" date_filed="1857-12-15" court="Ill." case_name="Wade v. King">19 Ill. 301, and it should have been admitted in evidence. Defendants were notified and attended, and cross-examined the witness in taking the deposition, and having had every opportunity to ascertain the truth of his evidence, it is not perceived that any possible injury can result from its being read in this case. ■
It was also objected that Whitsit was interested in the event of the replevin suit, and that his evidence was therefore not admissible., It is claimed that he purchased the mules for the defendants in error, and as their agent, with their funds, and that he was; not the owner of the property at the time he sold it to plaintiff, inj,error. If this is true it would leave his interest equally'balanced between the parties. If plaintiff in error "should succeed in recovering the value of the property, it would leave his representatives liable to defendants in error, and if they succeed, it would leave them liable to plaintiff in error on the implied warranty of title which enters into all sales of personalty, unless provided against when the sale is made.
But in his deposition he testifies that he was released by plaintiff in error. It is, however, urged that the release should have been produced, and could not be proved by verbal testimony. In the case of Ault v. Rawson, 14 Ill. 484" date_filed="1853-06-15" court="Ill." case_name="Ault v. Rawson">14 Ill. 484, it was held that it was competent for a witness to prove a release of his interest on his voir dire. No reason is perceived why the same thing may not be done when the question arises on his examination in chief. When the deposition was taken, defendants in error were present, but they made no objection on the ground of interest. The question was asked by the opposite party, and defendants made no objection to its beiirg answered. By failing to object at the time, when the opposite party could have had the opportunity of obviating the objection, they waived the right to raise the question in the Circuit Court. To permit the question to be raised on the trial, would be to give an unfair advantage to the party resisting the introduction of the evidence. To have been available, the objection should have been made and noted when the deposition was taken. Even if this witness had been incompetent on account of his interest, the objection comes too late when made in the Circuit Court for the first time.
It is not material to determine whether the questions were leading, as no such objection was noted when the questions were propounded to the witness. If the objection had then been made, it would have afforded the opposite party the opportunity of removing the objection by reconstructing the interrogatory. A party has no right to lie by and permit his adversary to take evidence, without objection, and when it is offered to be read, then for the first time to raise mere technical objections, calculated to produce costs and delay. Such a practice would not tend in the slightest degree to promote justice. If the witness might be led in giving his evidence, it is no hardship to require the opposite party to object, at the time, to the mode of examination adopted. If, however, the party against whom the deposition is intended to be used is not present when it is taken, the rule would not apply. But only in cases where he is present and has the opportunity of having the objection noted. For the reasons here given, the judgment of the court below is reversed and the cause remanded.
Judgment reversed.