Owens v. Northrup

| Wis. | Jun 15, 1872

Dixon, C. J.

This case comes up solely upon exceptions to evidence, or rather to the rulings of the court in excluding certain evidence offered by the defendant on the trial, and in sustaining objections to sundry questions put by him to the witnesses. The action is to enforce a mechanics lien, and the main point or gist of controversy, seems to be as to the personal liability of the defendant for the demands of the plaintiffs. The work was done, and some materials furnished by the plaintiffs, under a contract entered into by them, with one Wilson, who claimed to act as the agent of the defendant in the building of a house. The agency of Wilson is in dispute. The defendant denies that he was his agent, or had any authority to contract for him or in his name, and that became the point of support at the trial, upon which the personal liability of tbe defendant rested. Tbe authority of Wilson, if be bad it, existed merely in parol. No writing was ever made or given, and nothing but a verbal agency was claimed. Tbe plaintiffs resided at Oshkosh, Wilson at tbe village of Winne-conne, where tbe bouse was built, and tbe defendant at Eipon, which places are distant from each other, respectively, from twelve to twenty miles. It does not appear that tbe plaintiffs and defendant ever saw each other, or that any conversation or correspondence ever took place between them, before or during tbe time of tbe building of tbe bouse. It appears that tbe defendant was tbe owner of a foundry at Winneconne, which Wilson and one Brockway bad contracted to purchase, and which they were engaged in operating under tbe contract, in a way that a certain portion df each day’s earnings was to be applied as payment on tbe contract. It appears also, that Wilson’s dwelling-house was not situated near or convenient to bis business, and that be wanted another which was more so. To obtain this, it became necessary to build, and Wilson being in straightened circumstances, applied to tbe defendant for assistance, which the defendant promised. Tbe defendant furnished Wilson with tbe plan of a bouse, such as be himself bad built, together with an estimate of tbe quantity of lumber required, and tbe probable cost. It likewise appears that tbe bouse was built upon a lot in Winneconne, not owned by tbe defendant, but tbe title of which was in one Bovay. It does not appear that tbe defendant was ever at tbe bouse during tbe progress of tbe work, or manifested any particular interest in, or gave any directions respecting it, although be was at Winneconne several times during or about that period. It was furthermore in evidence, by tbe testimony of both Wilson and tbe defendant, that tbe defendant advanced Wilson $125 toward paying for tbe bouse. Wilson bought tbe materials, made tbe contract, supervised and directed tbe construction, and transacted all tbe business with respect to tbe building. Thus far there is no essential disagreement between Wilson and tbe defendant. Tbe other testimony requisite to a proper understauding of the case, and given by tbe parties and their •witnesses, appears from the report.

The sole, or almost the sole, reliance of the plaintiff to establish the agency was the testimony of Wilson. He testified to it positively. The defendant, when he came upon the stand, as positively denied it. On the cross-examination of Wilson, counsel for the defendant asked him this question: “Were you and Brockway running the foundry for yourselves, or did you have the avails of it to apply in the purchase of the foundry? ” The testimony was excluded by the court and the defendant by his counsel excepted.

Wilson had testified that the defendant “ built the house with the design for me to have it some time when I got ready to pay for it — it was for my accommodation;” whereupon the defendant’s counsel asked this question: “ Was the price of the lot agreed upon ? ” The question was objected to by the plaintiffs, and excluded by the court, and the defendant excepted.

The witness was interrogated respecting a conversation which defendant claimed took place between himself and witness, the last of August or first of September before the house was built and contract made with plaintiffs, in the back part of Lyman’s grocery in Winneconne, and was asked: “ Did you have a conversation then, in which was talked over between you and Northrup, in which he was to sell you the lot on which you were to build and you were to mortgage it back for the purchase money after you built the house?” This question was objected to by plaintiff, objection sustained and exception taken by defendant. And the court thereupon struck out some of the testimony of the witness, in which he stated that “ it was designed for me to have the house some time or other, if I paid for it; he (defendant) built it for that purpose; I could not say the exact date I commenced payment.”

The witness then stated that he recollected being at Ripon some time in October, that he was in Olmsted & Miner’s store at that time, and saw the defendant there, whereupon the following questions were put to bim: “ Did you, at tbat time, state in the conversation with Northrup and Olmsted, in the store, that you had got tired of paying rent, and was in a hurry to get into your own house?” “Did you state, at that time and place, to Mr. Olmsted, that you were going to eat your Christmas dinner in your own house, referring to this house?” “Was there any agreement of what you were to paj Northrup for this house and lot?” “What was the agreement between you and Northrup concerning the purchase of the lot by you?” “ Was there any agreement between you and Northrup as to the amount you were to expend on this house ?” And again the witness was asked, referring to the contract made with the plaintiffs and the money due them: “Did you ever request Northrup, or make any attempt to get the money of him, to pay them?” All these questions were in like manner objected to by counsel for the plaintiffs, and excluded by the court, under exception on the part of. the defendant.

Some other questions were likewise put to the same witness, and excluded, the propriety and relevancy of which do not clearly appear. They related to an alleged conversation between the defendant and the witness, in which the defendant denied that he had ever directed the witness to build the house, or had any contract with him about it. This testimony was clearly inadmissible, unless the proposition was to show that the witness expressly or tacitly assented to the correctness of the statements made by the defendant, which does not appear.

And on the examination of the defendant as a witness, the following questions were ruled out at the instance of the plaintiffs: “Was this house that was built such a house as that plan called for — was it according to the plan?” The defendant testified that he recollected a conversation between himself and Wilson, at the grocery store of Lyman in Winneconne, in the back part of the grocery, at which Fisher was present, and was asked to state what that conversation was. The plaintiff objected and the court refused to allow him to do so. The defendant was then asked: “ Was it talked witk Wilson the last of Anggnst or first of September, in the back part of Lyman’s grocery at Winneconne, that Eisher wanted to bnild a house, and that Wilson and Eisher would go down to Buttes desMortes together and buy lumber for their two houses, Eisher paying a part in money and Wilson making arrangements to pay the balance out of his foundry ?” This question was likewise objected to by the plaintiffs, and ruled out under exception taken on the part of the defendant.

It is obvious to our minds, that the court was in error in the several rulings to which attention has been called, and that the origin or ground of such error on the part of the learned judge, consisted in its having improperly assumed for the purpose of the evidence offered, that Wilson was in fact the agent of the defendant, authorized by the latter to build the house for bfm and in his name. Such is the error as it seems to us, into which the learned counsel for the plaintiffs have fallen in their argument in this court.

Assuming that Wilson was in fact the agent, with authority to do just what he did in the name of the defendant, then it is very clear, as counsel argue, that it was wholly immaterial what the relations between Wilson and the defendant were, with respect to the foundry or the running of it, or what agreement had been entered into between them as to the house after it should be built, or as to the title of the lot, or whether the house was built according to the plan furnished or suggested by the defendant, or finally what conversations had taken place between them, or what statements or admissions Wilson might have made inconsistent with or in disproof or denial of the fact that he was agent. All these positions are very correct, assuming the agency, but without such assumption, or supposing that Wilson may not in truth have been agent, which was the very fact in issue and to be found by the jury, it is manifest that they are entirely incorrect. It is with reference to the disputed fact of agency, as bearing upon that and tending to show that Wilson was not or may not bave been acting as agent, that we think the questions put and testimony offered were admissible. For this purpose we think the contract relations between Wilson and the defendant, respecting the foundry, their agreement, if any, as to the house and lot, the bargain for or proposed purchase by Wilson of the -lot, if that was so, and the price, and in fine, all the business transactions and relations then presently existing between the defendant and Wilson, at Winneconne, and which were connected with and led to the building of the house, were admissible and ought to have been received in evidence before the jury. With all these facts fully exhibited before the court and jury, it might have appeared after all that Wilson was not acting in the representative capacity which he claimed, and that he was not the agent, as he testified. The question of. agency in such a case is a mixed one of law and fact. Wilson’s statement, that he was acting as agent, did not conclusively demonstrate or prove that he was so, or that he had authority personally to bind the defendant. The defendant was entitled to have all the facts before the court and jury, in order that it might be seen whether Wilson was agent, or what the conclusion of the law would be upon the subject.

Evidence that the defendant furnished a plan for the house, was received as tending to establish or confirm the alleged agency. On the other hand, evidence that Wilson rejected or did not follow the plan, was equally admissible and potent for the opposite purpose.

And evidence, if the facts were so, that Wilson had made statements and admissions out of court, inconsistent with those sworn to by him as a witness in it, respecting his agency, or how or for whom he was building the house, was clearly admissible for a well recognized purpose, and upon a very familiar principle. A person claimed to have been the agent and authorized- to bind another as his principal, called upon the stand as a witness to prove such agency, by his own testimony, may be impeached or discredited with respect to the fact so testified by Rim, the same as any other witness, or the same as if he were testifying to any other fact. It may be shown of him, as of any other witness, that he has made different and conflicting statements elsewhere, as that he was not acting as agent, or authorized so to act, and these statements may be introduced for the purpose of contradicting or discrediting him. This is a very common method of impeaching the credibility of witnesses, and several of the questions asked should have been answered on this ground.

By the Court — The judgment of the court below is reversed and a venire de novo awarded.