Kent v. Tyson

20 N.H. 121 | Superior Court of New Hampshire | 1849

Gilchrist, C. J.

Several exceptions to the verdict appear in this case, and will be considered in the order in which they have been reported.

1. The plaintiff was permitted to prove the supposed agent’s signature to the contract, before establishing in proof the agency itself. There is no objection to this course beyond that of a possible inconvenience in proving a fact which does not support the party’s cause without the aid of another fact. This is incident to all trials. It seldom happens that all the facts can be simultaneously proved, and there is no rule but that of sound expediency arising upon the view of each case, that establishes priority in favor of one or another of a chain of facts, deriving each its force and relevancy from the complete proof of all the others. If the proof of the agent’s acts was irrelevant, without showing also his authority, proof of his authority would also have been equally unavailing without his acts. Which should be first proved, is and ought to be entrusted to the discretion of the judge who tries the cause.

2. The deposition of Hiram O. H. Bliss goes directly to establish the fact that West habitually controlled the goods of the defendant, in his ware-house at Newbury, sold them and delivered them to purchasers throughout a large district, in so public a manner that the claim of agency and authority which he made, might not unfairly have been presumed to be known and admitted by his constituent, residing at Plymouth. The open and public acts of a party claiming to be an agent are legal evidence of the relation. The witness was the servant of West, employed in the business of the alleged agency, and was fully informed and had the best means of being informed of the claim and capacity under which his employer assumed to sell the wares of the defendant. Stark. Ev., part 4, 56.

In stating, moreover, that Haven was the general agent, he could not have been understood to testify to anything beyond the open and visible acts of that party. Such is the obvious meaning of the testimony, and it cannot reasonably be construed as intended to establish any authority, as between Haven and the defendant, for the acts and assumptions of the former; and the testimony is competent.

The objection to the notice was settled in the court below, upon evidence that the distance of the party on whom it was served was not so great as to render a longer notice necessary, by the rules applicable to the case. This question of distance was one which we cannot reconsider.

The testimony of Nelson Kent, which proved the signature of West to the bill of stoves for which the note was given, might have been necessary to complete the chain of evidence by which the contract was sought to be brought within the scope of his authority. The precise nature of the objection is not pointed out, and none appears.

The deposition of Haven proves his general agency, and his appointment of West as a subordinate agent for conducting the business with which the witness was charged. The deposition does not show by what means — whether by writing or otherwise — either the witnesses or West’s authority was constituted, or what was the limit of either. But in the absence of evidence that there was a writing in either ease, the deposition is clearly competent to establish the facts it contains. The general agency of the deponent, the appointment and dismissal of West, the approbation, or at least the acquiescence of the deponent in the act of West in making the contract in dispute, and the liberal scope which the last named party was accustomed to assume in general, in the discharge of his office, with the knowledge and acquiescence of the deponent — these facts all appear to be pertinent to the issue, and the deposition seems competent to prove them.

When the plaintiff was called on by the bank of Woodstock, through their correspondent at Lancaster, to pay the note to which the contract related, it was proper that he should give notice of his claim under the contract, and this is all the conversation which the testimony of Wilson relates, amounted to.

An objection was taken that certain questions which the jury were instructed to consider were improperly referred to them. If it were to be conceded that these questions were of a mixed nature, which is all we must presume, that was intended by the exception, they were necessarily left to the jury; and if the instructions of the court on the matters of law involved, were less specific or full than the defendant conceived to he due to the justice of his cause, the desired instructions should have been moved for, in order to have laid the ground for a just' exception to the verdict.

The only remaining exception is founded on the alleged irregularity of permitting depositions, to go to the jury when they retired, of which some parts were not permitted to be read to them. On the law relating to this subject several propositions are laid down in Page v. Wheeler, 5 N. H. 91. One of these is, that if the paper which goes to the jury by mistake be immaterial, the verdict ought not for such an irregularity to be disturbed. The case does not show anything as to the materiality of these depositions, except that it was denied by the plaintiff himself. But the circumstances under which they were delivered to the jury are such, that the irregularity may justly be imputed to the defendant himself. His attention was called to each paper severally, and no 'objection was made, but one which, from its comprehensive scope, the objector himself may be presumed to have considered frivolous. If his conduct did not necessarily wear that aspect, it certainly tended to allay the vigilance of the plaintiff’s counsel, and to divert his attention rather than to awaken it. When the defendant’s counsel, on being asked if he objected to any of the papers going to the jury, did not distinguish those now in question from the writ and other necessary papers, if he may not justly be charged with an intention to mislead, he ought, we think, to submit to the consequences of having made his objections in a manner so little likely to be understood. His objection on notice should have been prompt and intelligible ; indicating at once actual opposition in his own mind, and an undoubted purpose of making it known at the moment.

These exceptions must all be overruled, therefore, and there must be

Judgment on the verdict.