delivered the opinion of the court.
The defendants on this record levied an attachment upon certain goods, as the property of H. Hoppe, their debtor. The plaintiffs interpleaded, claiming the goods
The substantial facts were that Hoppe was carrying on business as a retail merchant at Lebanon, Missouri, and, finding himself embarrassed, wrote or telegraphed to several of his creditors, proposing to go out of business, and to return to them such of the goods, which he had purchased of them on credit, as remained unsold. Among the creditors to whom Hoppe wrote were the-firm of Meyberg & Rothchilds Brothers, a partnership-firm doing business in St. Louis, and, also, Rothchild Brothers & Company, Hart Brothers, and Lindauer Brothers & Company, three partnership firms doing business in Chicago. Mr. Rothchild, of Rothchild Brothers & Company, went to Lebanon, and there, professing to represent the three Chicago firms, employed Mr. Moran, an attorney-at-law, to represent the three firms-in the transaction which was about to take place. Mr. Faulk, also, came to Lebanon, representing the interest of the St. Louis firm of Meyberg & Rothchild Brothers. Mr. Hoppe proceeded to invoice his goods, and to set apart to these four creditors the goods which he-had purchased from them respectively, and which he still had on hand. He delivered to Mr. Rothchild, in person, such goods as he had purchased of Rothchild Brothers & Company, and Mr. Rothchild boxed them up and shipped them to Chicago. He, also, set apart to Mr. Faulk the portion which he had on hand of goods which had been purchased from Meyberg & Rothchild Brothers, of St. Louis. He also boxed up and deposited at the railway station, at Lebanon, the goods which he had set apart for Lindauer Brothers & Company and Hart Brothers, of Chicago. But Mr. Faulk, being dissatisfied with what his firm was receiving, caused the goods which had been set apart to Lindauer Brothers & Company, and which had been deposited at the railway
At the trial, the question of the ownership of the goods was made to turn upon the inquiry whether they had been delivered to the agent of Lindauer Brothers & Company, the interpleaders. There was no evidence tending to show that they had been delivered to any agent of these interpleaders, unless Mr. Moran was their agent; and whether Mr. Moran was their agent was the whole question in the case. It seems that the attaching creditors went to trial supposing there would be no evidence that Mr. Moran had, prior to the attachment, been appointed to represent the interpleaders, and supposing that the case would turn upon the question of law, whether a deposit of the goods at the railway station, without their having been accepted by the station agent for shipment, would be tantamount to a delivery to the interpleaders. But Mr. Moran disappointed this supposition by testifying that he had, prior to the attachment, received authority to represent the interpleaders in the premises. He said: “I was employed by Rothchild to act for these three houses, and they have recognized meas their attorney, and dispatched me to ship goods before the attachment suit had commenced.” He also testified, at a later stage of the trial: ‘£ Mr. Rothchild received the goods on Saturday and Sunday, and left at four o’clock Monday morning. I, as his attorney, attended to his matters for him, and directed Hoppe to get all the goods over to the depot as soon as he could.
This testimony, if believed by, the trier of the facts, as it must have been, established the agency of Moran for the interpleaders, to receive the goods for them, which, as his testimony, elsewhere given, shows he did. As there was no direct contradiction of this evidence, it was necessarily conclusive of the case in favor of the interpleaders, unless an objection to it, which was made at the trial, and which is pressed upon our attention, is to be regarded as a sound one.
This objection was that the statements of the witness, as to receiving the telegrams, was not the best evidence. The witness having stated that the telegrams had been lost, that he could' not find them, after search in the place where he would have kept them, a sufficient foundation was laid for admitting secondary evidence of their contents, and the court properly overruled the objection.
These observations necessarily dispose of the other assignment of error, that the court erred to the defendants’ prejudice in allowing Mr. Moran, testifying ás a witness, to prove his agency by the declaration of Rothchild, another agent. It should be observed that Mr. Moran testified that he had no knowledge of the authority of Mr. Rothchild to represent these interpleaders, other than that derived from Rothchild himself. The doctrine that agency can not be proved by the unsworn declarations of the person claiming to
Instructions were submitted to the court by both parties, but the learned judge, through inadvertence, omitted to mark upon them, so as to show which had been given and which had been refused, though the bill of exceptions recites that, as a matter of fact, the court did consider and pass upon them. An objection was made to this omission of the court, and an exception was taken, on the ground that it deprived the party of the benefit of his exceptions on this appeal. Undoubtedly the appellant was entitled to have his exceptions passed upon, and marked in such a manner as to indicate the rulings of the court thereon, prior to, or contemporaneously with, the rendition of the court’s finding and judgment. The omission to do this is a practice which can not be sanctioned. Where such an omission has taken place, it is our duty, on appeal or error, to treat the case as though the instructions which the complaining party tendered were refused, and an exception duly saved.
So treating the question in this case, we can not see how the refusal of both the instructions of the defendants in this interpleader proceeding could possibly
Outside of all of these considerations, we incline to the opinion that the interpleaders would have been entitled to judgment upon the facts proved, even if the authority of Moran to receive the goods for them had not been established. They have ratified Moran’s act by bringing this suit, and a ratification takes effect by relation to the time of the doing of the act which is ratified. It is true, as a general rule, that a ratification will not be allowed thus to take effect where it will operate to displace the rights of innocent third parties which have attached prior to the act of ratification. But it may be seriously doubted whether the defendants in this proceeding are entitled to the benefit of this rule. As already stated, Hoppe, embarrassed and unable to carry on the business, was in the act of returning to several of his creditors the unsold goods which he had purchased of them, respectively. The defendants had received all that he had purchased of them which remained unsold, consisting of a large stock of hats, and, not satisfied with this, they undertook to seize the goods which Hoppe was endeavoring to return to these
The only other question in the case is whether the attaching creditors were entitled to a new trial on the ground of surprise. The alleged surprise consisted of the fact, already stated, that they did not suppose that any evidence would be given to the effect that Mr. Moran had been employed by the intei’pleaders to receive the-goods for them- prior to the attachment. Upon this question of surprise several depositions and affidavits were-read. These have been examined with care. It is sufficient to say that they do not show that the testimony of the deponents-and the affiants, if delivered to a jury or to a court sitting as a jnry, on another trial, would change the result. On the contrary, a decided preponderance of the evidence presented by these depositions and affidavits is in favor of the conclusion that Mr. Moran was employed to attend to the interests of theinterpleaders at Lebanon, prior to the attachment.
The judgment of the circuit court is accordingly affirmed. It is so ordered.