J. I. Case Plow Works v. Pulsifer

98 P. 787 | Kan. | 1908

The opinion of the court was delivered by

Benson, J.:

The declarations and admissions made by an agent of a corporation are competent against the corporation in two classes of cases :

First, when they relate to matters under the charge of such agent in respect to which he., is authorized in the usual course of business to give information. (Abbott’s Trial Ev., 2d ed., 54; McGenness v. Adriatic Mills, 116 Mass. 177.) As corporations can only act through their agents the declaration of an officer or agent whose duties authorize him thus to speak for the principal are treated as the statements of the principal. (2 Whart. Law of Ev. § 1177.)

Second, such declarations are admissible when made by the agent “while acting within the scope of his authority, and during the continuance of his agency, in regard to transactions depending at the time they are made.” (1 Ell. Ev, § 252.)

(See, also, 2 Wig. Ev. § 1078.)

The declarations of an agent which are not within the first classification, and which relate only to a past transaction, are hearsay and inadmissible. (Dodge v. Childs, 38 Kan. 526, 16 Pac. 815; Robins v. Murdock, 69 Kan. 596, 77 Pac. 596; A. T. & S. F. Rid. Co. v. Wilkinson, 55 Kan. 83, 39 Pac. 1043; Railroad Co. v. Osborn, 58 Kan. 768, 51 Pac. 286.)

“It is elementary law that to bind his principal the declarations of an agent must be contemporaneous with the event in question, must be made in the transaction of the business committed to his charge and as a part of it, and must be calculated to unfold its nature and to illustrate and explain its character so that acts and declarations combine and harmonize to form one transaction.” (Railway Co. v. Burks, 78 Kan. 515, 524, 96 Pac. 950.)

The general duties of the agent, Keener, were that of a traveling salesman. Incidentally he made collections within'his territory when directed by his company to do so; and it appears that he had by direction of the Kansas City manager obtained a property statement from Mr. Strain, after one of the orders had been received, and forwarded it to the Kansas City office, when the manager, whose duty it was to pass upon credits, acted upon it and accepted the order. It also appears that he had for several years sold goods for the plaintiff company to Mr. Strain, and had obtained one of the orders filled in the shipment of November 28. When the conversation with Swayze took place Mr. Keener was traveling from Jewell City, where he had been making a collection for the company, to Jamestown for the purpose of collecting a protested check given by Mr. Strain and forwarded to Mr. Keener for that purpose from the plaintiff’s office at Racine. He had previously obtained" the property statement to enable the manager to act upon the order. That transaction had been fully closed and was no longer pending when this conversation took place. It is true that he was on his way to see Strain about a protested check. It is also true that when he reached Jamestown he undertook to adjust the matter out of which this action arose. He was engaged in business for the company, but he was not engaged in the particular business referred to in the conversation with Swayze, and as to that his statements were a narrative of a past transaction or of knowledge gained in a past transaction.

“It must be remembered,” says Greenleaf, “that the admission of the agent can not always be assimilated to the admission of the principal. The party’s own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending et dum fervet.opm.” (1 Greenl.-Ev., 15th ed., § 113. See, also, Mechem, Agency, § 714.) It can not be claimed that Mr. Keener’s duties were such that his statements should be considered as those of the principal, as might be in the case of a superintendent with reference to matters within his department, for his general duties were those of salesman. The extension of credit within his territory was a duty resting upon the manager at Kansas City, and certainly Mr. Keener was not authorized to make any statements concerning that matter relating to transactions then closed. It is equally clear that while making such statements he was not acting within the scope of his authority with regard to matters then pending.

“An act done by an agent can not be varied, qualified, or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversation held, or an isolated act done, at a later period.” (Vicksburg & Meriden Railr’d v. O’Brien, 119 U. S. 99, 105, 7 Sup. Ct. 118, 30 L. Ed. 299.)

It is argued by the defendant that Keener obtained knowledge of Mr. Strain’s condition at the time he took the property statement, and that the knowledge so obtained was the knowledge of the principal. If this should be conceded, still it does not follow that his statements made afterward would be competent evidence. There was no evidence that Mr. Keener had obtained such knowledge as claimed, except the admissions so testified to. In Elliott on Evidence it is said: ■

“There are ’also many authorities which hold that the admission's of a general agent may be received as against the principal even though they relate to a past transaction, but most of the decisions to this effect are based upon facts showing that such admissions are really part of the res gestee, or upon the theory that the agent, by his employment or contract, was either expressly or impliedly given authority to make such admissions, and there are an almost equal number of decisions to the effect that the declarations of a general agent made after a transaction is entirely ended are not ordinarily admissible against the principal.” (1 Ell. Ev. § 252.)

It will be seen by reference to the authorities cited, and many others'to the same import, that the conversation of Mr. Keener with Swayze was erroneously admitted.

The plaintiff also complains of the ruling of the court in admitting testimony concerning the following transaction: After the trust deed was made, and on the same day, Mr. Keener, the agent, induced Mr. Strain to sign a consignment contract purporting to show that the goods in question were held for sale on commission as the property of the plaintiff, which was not true. The paper so obtained was never sent to the plaintiff, and never came to its knowledge until after the action was brought, and the plaintiff never claimed and does not claim any rights under it. It can not be treated as the act of the plaintiff, for it did not authorize it, know of its existence, or ratify it. It was the unauthorized act of the agent, and the court rightly held that it did not estop the plaintiff from maintaining the action upon the theory upon which it was brought, namely, that the goods were obtained fraudulently. The contention of the defendant is that this act of the agent was inconsistent with the claim'of a right to rescind the sale for fraud, and evinced a purpose to claim the goods upon a different ground. The court instructed the jury that this attempt of the agent to substitute another contract did not amount in law to a recognition of the original sale as valid, and did not estop the plaintiff from prosecuting its action, but that the jury might consider the evidence concerning it, with the other circumstances proved, for the purpose of determining whether the plaintiff did, after obtaining knowledge of the financial condition of Strain, take any-action or do anything which recognized the validity of the sale. Thus the court authorized the jury to consider this action of the agent in endeavoring to substitute another contract as some evidence of a recognition of the validity of the original sale. This would have been proper if any evidence had been given tending to show that the plaintiff had in any manner authorized or ratified the transaction. In the absence of any evidence of such authorization or ratification the instruction was erroneous, and an instruction requested by the plaintiff that the taking of such instrument by the agent should not be considered by the jury was proper. The evidence of this attempt to change the contract was objected to when offered, but the court could not at that time determiné whether evidence would be offered tending to connect the plaintiff with it. When the evidence closed, and it appeared that this authority was lacking, the instruction requested or one of similar' import should have been given.

' Because of the errors herein referred to the judgment is reversed, and the case remanded for further proceedings.