66 Mo. 114 | Mo. | 1877
— The defendant was liable in this action, if at all, upon the ground that James S. Barton was his agent in the purchase of the materials, or, else, that having been purchased for him by Barton, without any authority previously given by defendant, the defendant subsequently ratified the act.
That the declarations of a person, who assumed to act as agent of another, are not admissible to establish the agency is well settled; but it is equally well settled, that after the party alleging the agency has made a prima facie case of agency against the principal, any -declarations made by the agent in the prosecution of, and relative to the business contemplated by such agency, are admissible against the principal. Barton, the first witness introduced by plaintiffs, testified that he purchased for defendant the materials in question, arid that he was ordered to do so by the defendant. This was a sufficient foundation for the admission
Respondent contends, that if Barton’s declarations, that he was the agent, are to be received against him, then any declarations to the contrary made by him are admissible against the appellant. This does not follow. His declarations are only received against the principal, because of the relation between them. Until this is established, they are not admissible against the priiMffpS^ and when admitted, they are as the declarations q£' tlje principal himself. Qid facit per alium facit per se. .
As a witness, he testified to the agency, and if he had made contradictory statements in regard to his agency, it was legitimate to impeach him in the ordinary mod^but what he may have said to third persons, as to his agency, could not be received against plaintiffs as evidence of the truth of such statements, but only to show the character of the witness, and to enable the jury to determine what credit he was entitled to as such. The 13th instruction given by the court for plaintiffs, was therefore a correct declaration of the law, and the coui't properly excluded evidence of statements made by Barton, tending to show that he was not defendant’s agent, except those as to which he was interrogated and denied making.
Barton was asked, on cross-examination, if he did not state to J. ~W. Lamson, naming time and place, that he had made a contract with Ritchey to erect for the latter, a dwelling house at Ritchey, Mo., for $4,200.00. His answer was that ho did not know whether he had or not. Lam-son was introduced as a witness by defendant, and asked if Barton had not, to him, made that statement, at the time and place designated, but the court refused to permit witness to answer the question, because Barton had not denied that ho made the statement. In this the court erred.
A witness cannot avoid contradiction by equivocating,
The 5t\i is defective in declaring a consignee liable, if he know thásfc goods are shipped in his name and are subject to his order, unless he immediately notify the consignor that he refuses to accept them. This requires a qualification that they were bought for him by some one who was not authorized to make the purchase, and that the consignee was aware of the facts. The purchaser, for his convenience, might have ordered their consignment to the consignee; the simple fact of consignment of goods to the consignee, is by no means notice to him that the consignor holds him, as a purchaser of the goods, for their price.
The 6th instruction was wholly unnecessary, and the principle it was intended to declare, was much better stated in the 3d instruction.
4.
In the 10th, the words “ within a reasonable time,” or “ as soon thereafter as he can,” or equivalent words should have been substituted for “ within a- few dayfe,” Each case is governed by its own .. . . , tt t • i peculiar circumstances. ' Under some cir-r cumstances the act of the agent would bind1 the principal, if he did not immediately repudiate it, while, other cases may be supposed where his silence for a week' would not have that effect.
The 12th is erroneous in this, that it assumes that Ritchey received the goods. That was an issue for the jury to pass upon, and the court in its instructions, should not have assumed the fact to be one way or the other.
The 14th instruction should have been refused. It is not a principle of law that a witness is not to be disbelieyed solely because he made statements out of the court inconsistent with his testimony, nor is the converse of the proposition true. The jury are to determine the credibility of the witness from all the facts and circumstances in evidence. Some confidence must be reposed in their intelligence and integrity. Why a witness should, or should not, be believed, the ordinary juror is capable of deciding. There are no artificial rules which will conduct liim unerringly, but his common sense and experience will enable him, if he is unbiased to place a proper estimate upon the testimony of witnesses. These are much safer guides than any arbitrary rules that could be prescribed. The court determines the competency, and when it has told the jury that they are the sole judges of the credibility of witnesses, and, to this end should consider all the facts and circumstances which bear upon their credibility, it has fully discharged its duty in that respect. There is no man of common intelligence, but knows what relations and circumstances are most likely to bias a witness, and, although frequently given, and too often approved by courts of last resort to be condemned, yet it needs no instruction from the court to tell the jury that a father or a sou is under temptation to color his testimony to secure to the other success in any controversy he may-engage in.
the judgment is reversed and the cause remanded.
Reversed,,.