Jennings v. Garner

47 P. 177 | Or. | 1897

Mr. Justice Wolverton,

after stating the facts, delivered the opinion of the court.

It is contended that, inasmuch as agency cannot be proven by the declarations of the agent, the court erred in refusing to grant defendants’ request to strike out the answers of witness McDaniels set forth in the foregoing statement. The answer is a little ambiguous, but it is susceptible of the construction that A. B. Carswell and J. S. Garner said they were the agents of the other defendants named, and that they- — Carswell and J. S. Garner— had entered into an agreement to pay plaintiff two and one-half per cent, commission on $10,500. Now, it may be admitted that it was incompetent for the witness to state what Carswell and Garner said touching their agency, but the statement touching what they said as it respects the commission agreed to be paid was perfectly competent and relevant, because it was a disputed question whether there was an agreement to pay a commission. The request to strike out, therefore, conjoined matter that was competent with such as may be said to be incompetent, without discrimination, and, such being the case, it was proper for the court to deny the request. It is the duty of a party to separate the incompetent from the competent testimony, for when the two are indiscriminately combined the motion to strike out should be. overruled: 1 Thompson on Trials, § 719. In Wolfe v. Pugh, 101 Ind. 294-307, Zollars, C. J., said: “The motion included all the conversations of Osborn with Pugh, some of which were clearly competent. If any of the evidence was competent, it was not error to overrule a motion to strike out the whole of it.” And in State v. Hymer, 15 Nev. 49, it was held that the motion to strike out all the testimony of a witness, when any portion thereof is admissible, should be denied. See also Louisville, etc., Ry. Co. v. Falvey, 104 Ind. 409 (3 N. E. 389). The court was therefore, not in error in refusing the request.

The assignment of error touching the court’s instructions is vague and indefinite. However, this supposed defect was not insisted upon at the oral argument, but it was contended that it was error to instruct the jury at all touching an implied contract, and that any testimony which went to the jury tending to prove such a contract was clearly incompetent under the pleadings. The answer to this is that there were no objections whatever made at the trial to the introduction of such testimony, nor were there any exceptions taken to the instruction sufficiently pertinent to save the questions suggested for the consideration of this court, and it is now too late to-predicate error touching the action of the court below in that regard.

Affirmed.