Pickert v. Hair

146 Mass. 1 | Mass. | 1888

Field, J.

It is contended that the evidence offered of what Mr. Thayer said to Mr. Bacon was competent for two purposes : first, to contradict R. F. Pickert, who had testified as a witness for the plaintiffs; and, secondly, as an admission made by Mr. Thayer as attorney for the plaintiffs in these actions, and therefore equivalent to an admission by the plaintiffs themselves.

As evidence to contradict the witness Pickert, it was not competent, because it was not testimony of anything R. F. Pickert said, but testimony of what Mr. Thayer said that he said. For the same reason, if the evidence was offered for the purpose of showing that R. F. Pickert, as general manager of the business, made certain statements which are to be regarded as made by him, while acting for his principals within the scope of his employment, and in legal effect the same as if made by his principals, the testimony was not competent .to prove that R. F. Pickert ever made the statements. It is not necessary to determine whether evidence that Pickert made the statements to Mr. Thayer would be competent. On the defendant’s theory, they were statements made by one agent of the plaintiffs to another, and it is at least doubtful if they were within the scope of the authority given to R. F. Pickert. It is only on the ground that- there was evidence that Mr. Thayer, when he had the- conversation with Mr. Bacon, was attorney for these plaintiffs, and adopted the alleged statements of Pickert to him as his own, that the argument of the defendant upon the competency of the admissions of an attorney at law against his client has any relevancy.

We think it very doubtful whether the evidence offered can be regarded as anything more than a statement by Mr. Thayer of what R. F. Pickert represented to him, and wished to have done; but if it be assumed that it contained any admission or representation by Mr. Thayer of the fact of ownership of the property, and if it also be assumed that there was evidence for the jury, that, at the time of the conversation with Mr. Bacon, Mr. Thayer had been retained as an attorney at law for these, plaintiffs, for the purpose of obtaining a discharge of the attachment upon the propei’ty, still we think that the evidence was incompetent, because the statement was one which an attorney j at law is not authorized, by virtue of his employment, to make’ on behalf of his client. The present suits had not then been brought. The information which Mr. Thayer said he had received from R. F. Pickert was given to Mr. Bacon that it might be sent to Mr. Bacon’s clients in New York, to induce them to investigate the truth of the statement, and, if satisfied of its truth, to discharge the attachment. The attachment was never discharged. The admission' was not made by Mr. Thayer for the purpose of dispensing with any rule of practice, or with the proof of any fact in the trial of the action already brought, . or of the actions which might be brought, in reference to the attached property. It was a conversation relating to a fact in| controversy, but not an agreement relating to the management and trial of a suit, or an admission intended to influence the procedure in the pending action, or in any other, if the attachment was not discharged. Saunders v. McCarthy, 8 Allen, 42. Lewis v. Sumner, 18 Met. 269. Treadway v. Sioux City & St. Paul Railroad, 40 Iowa, 526. Petch v. Lyon, 9 Q. B. 147. Wagstaff v. Wilson, 4 B. & Ad. 339. Moulton v. Bowker, 115 Mass. 36. Parkins v. Hawkshaw, 2 Stark. 239. Young v. Wright, 1 Camp. 139. Watson v. King, 3 C. B. 608. Hulin v. Richards, 2 C. & K. 216. 1 Greenl. Ev. § 186. Exceptions overruled.