Nichols, Shepard & Co. v. Jones, 32 Mo. App. 657

Nichols, Shepard & Co. v. Jones

32 Mo. App. 657 | Mo. Ct. App. | 1888

Hall, J.

— I. The letter with the indorsement thereon and the statement of facts filed in'the case before the justice of the peace were not admissible in evidence in this case. Admissions of fact by an attorney in one action are not admissible in evidence against the client in another action, unless the client acquiesced in the admissions. Wilkins v. Stidger, 22 Cal. 239; Harrison v. Baker, 5 Litt. 250; Etting v. Scott, 2 Joleno, 156; 1 Phil, on Ex. p. 508, notes 141, and p. 523, note 148. There was no evidence of the plaintiff’s acquiescence in the statements made by its attorney in said papers.

Allegations in • the declarations or pleadings .in a suit at law are receivable against the party in a subsequent suit between him and a stranger, as his solemn admission of the truth of the facts recited (1 Green on Ex. sec. 186) because prima facie the party acquiesced in the allegations in his pleadings, and the attorney’s statement was his statement. But the pleading is not admitted as conclusively establishing the facts alleged therein, and is to be treated according to the principles governing, admissions. 1 Green on Ex. sec. 527a.

An attorney, in all matters relating to the progress and trial of the cause, may bind his client. And so admissions made by the attorney for the purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial, are binding upon the client for the purposes of the case in which they are made. 1 Green on Ex. sec. 186. But the attorney’s power is not general, but special, confined to the particular case in which he is employed, *665and hence his admissions cannot be received outside of said case, unless the client has made the admissions his own by acquiescing in them. 1 Phil, on Ex. supra.

II. The depositions of Pursell were not admissible in evidence. He would not have been a competent witness in this case at common law for the defendant. It is true that he was not a party to the record, but he wag a party in interest, and his interest was in favor of the defendant, his surety, to the amount of the costs of the suit. The common-law rule on this question was: “In an action on a joint and several bond, against one of the obligors, who was surety for another, that other obligor (the principal) is not competent for the defendant, to prove a payment of money by himself, in discharge of the bond; for he has an interest in favor of his surety to the extent of the costs of the action.” 3 Phil, on Ex. 44, 68, 74, and cases cited.

Was Pursell a competent witness under our statutes for the defendant % Our statute on this subject is as follows, so far as it is material to this case: “No person shall be disqualified as a witness in any civil snit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility, provided that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.” R. S. sec. 4010. Under this statute; one who contracts with the agent of a corporation is not a competent witness in his own favor as to such contract, or the admissions and declarations of the agent, after the latter’s death. Williams v. Edwards, 94 Mo. 447.

The depositions of Pursell related entirely to the contract between himself and the plaintiff ’ s deceased agent Stewart, pleaded in the answer, and hence under the case just cited were inadmissible, unless Pursell was a competent witness, for the reason that he was not a party to the record.

*666The fact that Pursell was not a party to the record made no difference. He was a party in interest, at common law he would have been incompetent on account of such interest, and under this statute he was incompetent to testify to the contract or any transaction in relation thereto, had by him with the deceased agent. Meier v. Thieman, 90 Mo. 442. The purpose of the statute “is to provide that when one of the parties to a litigated obligation is silenced by death, the others shall be silenced by law,” and if at common law the surviving party would have been incompetent on account of interest, he is incompetent under the statute. Id.; Ring v. Jamison, 66 Mo. 424; Angell v. Hester, 64 Mo. 142.

III. The court erred in giving instruction number five for the defendant. That instruction was in conflict with the law as correctly declared in the following instruction given for the plaintiff:

“ The court instructs the jury, that although they may believe from the evidence that John R. Stewart was the agent of the plaintiff, with full power both to sell machinery and take notes therefor, and with power to collect said notes, yet such power and authority to sell and collect does not imply authority to compromise such notes, and unless the jury believe from the evidence that said Stewart, in addition to the authority to sell and collect, was authorized and empowered by plaintiff to compromise the notes sued on, or was authorized generally to compromise notes for plaintiff, then the jury will find for plaintiff.”

The judgment is reversed and cause remanded.

All concur.