18 Colo. 106 | Colo. | 1892
delivered the opinion of the court.
A number of errors are assigned to the proceedings in the court below. The errors pressed in this court may all be considered under three heads: First, is the evidence sufficient to warrant a judgment for plaintiffs; second, did the court err in striking out the defendant’s motion for a new trial filed at a term subsequent to the term at which the cause was tried; and third, did the court err in overruling defendant’s motion to set aside the judgment and for a new trial of the cause under section 75 of the Code?
It is well settled that neither the fact of agency nor the extent of authority can be proved by the declarations of the alleged agent. And it is equally as well established that when an agent makes a contract or does any act representing his principal, his declarations made at the time explanatory of the act are admissible in evidence on behalf of either party. Story on Agency (7th ed.), sec. 136; Wharton’s Ev. (3d. ed.) sec. 1173.
The testimony of E. A. Guilbault, the secretary of the Lee Company during the times the items covered by both bills were furnished, is to the effect that Boschen had charge of the affairs at the mine and handled things in his own way until he was superseded by Roudebush. It seems that at this time one Fretz worked the property under a lease, paying as rental therefor a certain percentage of the proceeds, and that Boschen handled the affairs for the Lee Company and for the lessee as well; “ that he attended to everything at the mine for the lessee and the company.” The witness further testified that Boschen acted in such capacity for three years, beginning with the year 1884, and that he did everything except to keep the royalty belonging to the Lee Company; this at the end of each month he paid over to the witness, who gave him proper credit for the same upon the books of the company. It was the practice of Boschen to make statements periodically, showing articles bought and repairs put upon the machinery. These were usually taken out of the royalties and the balance turned over to this witness for the company. He also testified that Roudebush acted in a similar capacity for the company during the time the second bill was charged, and adds on cross-examination : “ Every month there was machinery and repairs charged to the company. The officers of the company were here part of the time, and the president knew of the deduction from
It is also in evidence that plaintiff did other like work upon the machinery at the mine between the dates of these two bills, and that said work was paid for by the company. We think this evidence is sufficient to sustain the claim that both Roudebush and Boschen were its managers and agents, and authorized to contract for and on behalf of the company for the items charged for in the bills of particulars rendered. Aside from this, other evidence was introduced to establish the liability of the company, independently of this question of agency. If the company had leased the property with a contract that the lessee should pay for such repairs during a part or all of the time at which these repairs were being made, plaintiffs had no notice of any such arrangement. If it desired to avoid liability it should have given notice in some appropriate way of the alleged change in the condition of affairs at the mine. Parties cannot be allowed to make secret arrangements of which the men working for them have no notice and thereby hope to escape responsibility for debts contracted. We think the evidence is amply sufficient to warrant the findings of the court below. This disposes of the assignments of error which question the competency of the evidence of the declarations of Roudebush and Boschen.
The granting or denying of the application under section
We have preferred to consider this application upon its merits, believing such a course would be more satisfactory to the parties concerned. As to the right of a party appearing and defending at the trial to claim the benefit of the provisions of the section of the Code relied upon in this case, we express no opinion. See Freeman on Judgments, sec. 105.
The judgment is
Affirmed.