La Vie v. Tooze

74 P. 210 | Or. | 1903

Mr. Chiee Justice Moore,

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

Counsel for plaintiff offered in evidence a power of attorney executed by him August 13, 1902, the material part of which is as follows :

“Know all men by these presents that I, George A. La Vie, of the State, County and City of New York, have made, constituted and appointed, and by these presents do make, constitute and appoint, Conrad Krebs and-Krebs, of the City of Salem, in the State of Oregon, said Conrad Krebs and-Krebs composing the firm of Krebs Brothers, and doing business under the name of Krebs Brothers, my due and lawful attorneys for me and in my name, place and stead, to institute and carry on all legal proceedings necessary to compel the performance of the written contracts entered into by the said George A. La Vie in the State of Oregon for the purchase or consignment of hops, * * to receive any and all of the said hops when delivered.”

An objection to this instrument on the ground that it was immaterial and irrelevant, and that it therefrom appeared that Conrad Krebs only was appointed agent, having been sustained, an exception was saved. M. W. Krebs appearing as plaintiff’s witness, the following questions were propounded to him : “Are you a member of the partnership of Krebs Bros.?” “ I will ask you, Mr. Krebs, who, on the 16th day of January, 1902, in this county, constituted the firm of Krebs Bros.?” “ I will ask you, Mr. Krebs, what you did with Mr. Kaser, on the 25th day of October, 1902, with respect to the delivery of the hops mentioned in the pleadings in this case to La Vie by you, as La Vie’s agent?” Plaintiff’s counsel here said to the court: !<We want to show an actual delivery of the hops.” “ I will ask you, Mr. Krebs, if you know who was the agent of La Vie in Marion County at that time — on October 25, 1902.” Objections to these questions on the ground that they were immaterial and incompetent having been sustained, plaintiff’s counsel stated to the court: “ One thing I overlooked, and that is, I want to prove by this witness that he was a member of the firm of Krebs Bros., and that the firm was constituted of Conrad Krebs, Leonard Krebs, and M. W. Krebs.” It is contended by plaintiff’s counsel that the court erred in excluding the power of attorney and in not permitting the witness to answer the questions above quoted.

1. The contract entered into for the sale of the hops was executory, requiring Kaser to care for, cultivate, and harvest the crop; thus showing that no title or right of possession passed by the instrument, and thereby precluding the maintenance of an action to recover possession of the property: Backhaus v. Buells, 43 Or. 558 (73 Pac. 342).

2. In this state of the case, the power of attorney was immaterial, unless there was a voluntary delivery of the hops to plaintiff’s duly constituted agent. It will be remembered that the witness was asked what he, as plaintiff’s agent, did October 25, 1902, with reference to the delivery of the hops; and, an objection to the question having been sustained, plaintiff’s counsel stated to the court: “We want to show an actual delivery of the hops.” It is fairly inferable from the question and the statement quoted that Kaser delivered the hops to the witness, and, if the latter was plaintiff’s agent, the executory contract. became executed, and the right of possession of the property passed by such act; and, if it was thereafter taken by any person from the plaintiff without his consent, this action could be maintained to recover its possession.

3. It will also be remembered that plaintiff’s counsel stated that he wanted to prove by the witness that he was a member of the firm of Krebs Bros., which consisted of Conrad Krebs, Leonard Krebs, and M. W. Krebs; and this presents the question whether or not oral testimony was admissible to show that any other than Conrad Krebs, who is named in the power of attorney, was by that instrument appointed plaintiff’s agent. In Price v. Page, 4 Ves. Jr. 679, a legacy having been bequeathed to-Price, the son of-Price, it was held that testimony was admissible to show the Christian name of, and to prove the identity of, the legatee. In Herring v. Boston Iron Go. 1 Gray, 134, a written agreement having been entered into whereby the plaintiff agreed to slate a building to be erected in South Boston “by Horace Gray, Esq., and others,” it was held that extrinsic evidence was admissible to show who were designated by the words “and others” in the written agreement, Mr. Justice Thomas saying: “To ascertain who are the parties, resort must be had, in the first instance, to the written instrument. If this fail to designate them, or either of them, resort must be had to extrinsic evidence to supply the want.” In Wadsworth v. Allen, 8 Grat. 174 (56 Am. Dec. 137), in an action on a letter of credit addressed to Wadsworth and Williams, it was held that testimony was admissible to prove that the letter was intended for Wadsworth, Williams & Co., so as to hold the writer bound to the latter thereon. In Leach v. Dodson, 64 Tex. 185, a grant of real property having been made to-Hale, it was held that testimony was admissible to prove the Christian name. In Holmes v. Moon, 7 Heisk. 506, a deed having been executed to Jarrett Moon & Co., it not appearing whether the firm was composed of Jarrettand Moon and others, or Jarrett Moon (one person) and others, it was held that the uncertainty arising from the omission of the Christian names of the grantors might be removed by parol proof. The rule is well settled in this state that parol evidence is admissible to explain an ambiguity, to identify property, and to apply an instrument to the subject-matter to which it relates: B. & C. Comp. § 704; Jones v. Dove, 6 Or. 188; Boehreinger v. Creighton, 10 Or. 42; House v. Jackson, 24 Or. 89 (32 Pac. 1027); Sommer v. Island Merc. Co. 24 Or. 214 (33 Pac. 559); Reinstein v. Roberts, 34 Or. 87 (55 Pac. 90, 75 Am. St. Rep. 564). The testimony rejected by the court did not, in our opinion, tend to enlarge the power of attorney, but was calculated to show who were intended by the designation “ Krebs Brothers,” and for that purpose was admissible, as was also the testimony which might have disclosed that the hops had been voluntarily delivered by Kaser to plaintiff’s agent. For the error committed in excluding such testimony, the judgment is reversed, and a new trial ordered. Reversed.