Minard v. Stillman, 57 P. 1022

Minard v. Stillman

57 P. 1022 | Or. | 1899

Mr. Chief Justice Wolverton,

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

Before proceeding with the trial, the plaintiff moved to suppress the deposition of one James A. Marston, taken before C. H. Sholes, a notary public at Portland, Oregon, basing the motion upon two grounds, viz.: (1) That it does not appear from the certificate of the notary that the witness Marston had been sworn as the statute requires ; and (2) that the certificate does not show that Mrs. Olive A. Swallow, who participated in reducing the deposition to writing, wrote what was dictated to her. The notary certifies “that it [the testimony] was taken by me in shorthand and immediately thereafter transcribed into typewriting by myself and Mrs. Olive A. Swallow from my direct dictation; * * * that before proceeding to the examination of the said witness, J. A. Marston, the said J. A. Marston was duly sworn to tell the truth, the whole truth, and nothing but the truth.” The oath is in the exact language as required to be certified under the statute, and is proof sufficient that a proper oath was administered. Upon the second point, it appears that the deposition was transcribed by the notary and Mrs. Olive A. Swallow from his dictation. The certificate shows who reduced the deposition to writing, and that Mrs. Swallow assisted therein. Nothing more is required. See Hill’s Ann. Laws, § 825.

During the course of the trial the defendant offered in evidence Exhibit B, which is in the following language : “Pendleton, Oregon, 11 October, 1894. A. D. Stillman, my attorney in fact, is hereby authorized and directed to receive in full settlement of insurance under Liverpool & London & Globe insurance policy No. 61,517, and Caledonian policy No. 732,178, and loss occasioned by fire under said policies, the sum of $900, of which I agree to *262receive in full settlement the sum of $650, from which shall be deducted the agreed commission and charges. [Signed] Mrs. M. E. Minard, by W. F. Minard, Agent.” It was objected to the introduction of this writing that it did not appear that W. F. Minard had been authorized or empowered to act as the agent of the plaintiff; but the record shows there was evidence introduced, sufficient to go to the jury, from which they'might infer or conclude that she had so authorized him as it pertained to the settlement of the matter in hand, and the exhibit was therefore properly admitted in evidence.

The plaintiff has taken and saved exceptions to several instructions given by the court. Upon all these error is severally assigned. We can better expedite the examina-_ tion by giving first the substance of the instructions to which exceptions were taken, and then noticing the objections. The jury were instructed that if they found that W. F. Minard was the agent of plaintiff in the settlement, either with the adjuster or the defendant, or that plaintiff held Minard out as her agent, and that defendant acted in the matter in good faith, believing and having good reason to believe that Minard was such agent, then plaintiff was bound by his acts, and the settlement, if one was made with W. F. Minard, was a good defense in the action; that in determining whether or not Minard was the agent of plaintiff, with authority to make a settlement with the defendant, or whether she had held him out to the defendant as such agent, they could take into consideration any evidence tending to show that prior thereto he had generally transacted her business, or that she had authorized his acts or conduct in relation to the loss prior to the date of the alleged settlement, or approved of such acts or conduct, or that she had recognized or acted upon his acts in relation thereto, with knowledge that he was exercising control of such settle*263ment or adjustment; that if the transaction was a fraud upon anybody other than the plaintiff, or otherwise corrupt, and plaintiff, by herself or her agent, was knowingly a party to it, neither party can take any advantage of the transaction ; that the letter by defendant to plaintiff dated October 19, 1894, is notice on its face to plaintiff that defendant had been dealing with W. F. Minard as plaintiff’s agent, and had made terms of settlement with him, and the receipt was signed in the light of, and in reference to, the letter; that the instrument dated October 11, signed, “Mrs. W. F. Minard, by W. F. Minard, Agent,” is a statement of authority, authorizing the settlement as claimed by the defendant, and if W. F. Minard signed the same, and had authority to sign the same, for the plaintiff, that such instrument was, as between the plaintiff and defendant, a justification of the acts of the defendant in making the settlement and applying the $250 as claimed by him.

It is first objected that there is no evidence in the record that plaintiff held Minard out as her agent. In this, counsel is evidently mistaken, for it was shown that Minard went with the policies, in the first place, to the office of the defendant, and made the contract with him for the collection, and there was other evidence tending to show that Minard transacted her business generally, and that he participated in making .the alleged settlement under the direction and with the knowledge of plaintiff. This was sufficient to both warrant and require the instruction. The next objection is that the jury were directed to find for defendant if it was ascertained that he believed Minard was the agent of plaintiff, without reference to the fact of agency. But such is not the legitimate deduction from the instruction. What the court did charge was that the jury should first ascertain and determine, under the rules given for their guidance, *264whether Minard was the agent of plaintiff, and, if such was the fact, then that his act would be binding upon her. It is further claimed that the court invaded the province of the jury by telling them that the letter of October 19, 1894, is notice on its face to the plaintiff that defendant had been dealing with W. F. Minard as her agent. The letter recites, among other things, the following: ‘ ‘We have the money agreed upon by your agent, W. F. Minard, and our A. D. Stillman, in settlement of your claims against the London, Liverpool & Globe Insurance Co. * * * The receipt covers the amount you agreed to accept in compromise.” What was said was but the iteration of a fact so patent from a perusal of the letter that it could have done the plaintiff no harm, as they could have drawn no other conclusion, even if the instruction may be said to be objectionable as a comment upon the evidence. The plaintiff requested several instructions, some of which were given, and others refused. Error is predicated upon all instances of refusal. Without taking up the various assignments and disposing of them in detail (for they are numerous), suffice it to say that we have carefully examined all the refused instructions, and find that the court properly disposed of them, as they consisted either of abstract propositions of law, without applicability in the light of the evidence adduced, or were covered by other instructions fairly given. These considerations affirm the judgment of the court below, and it is so ordered. Aketrmed.