Simonds v. Clapp, 16 N.H. 222

Simonds v. Clapp

16 N.H. 222 | Superior Court of New Hampshire | 1844

"Woods, J.

The plaintiff’s case as stated in his first count is, that the defendant having promised a reward of $200 in consideration that the plaintiff or any other person would arrest one Seal who had escaped from the lawful custody of the defendant, the plaintiff arrested him so that he came again into the custody of the defendant, yet the defendant refused to pay the offered reward.

In his second count he alleges that the promise or offer of the reward was to any one who would arrest the prisoner, and tiie count is in other material respects like the first. A general count for labor follows.

To prove the offer, the plaintiff produced an advertisement in which the reward was offered to be paid for the arrest of Seal,. The advertisement was published by Ephraim Hutchins, whose authority was to offer the reward to the person who should give information which might lead to the arrest of Seal.

It is said by the defendant that this evidence does not sustain the declaration, because the agent’s authority not having extended to the offer of a reward for the service described in the advertisement, that instrument was not *231the publication or act of the defendant; and that if he can be charged with any offer or any liability, it must be such an one as he intended to assume in his instructions to Mr. Hutchins.

Now .if the defendant gave a general authority to Hutchins to offer a reward for the apprehension of Seal, without limitations or instructions as to the precise conditions or the terms in which the offer should be made, it requires no argument to show that the course pursued by Hutchins, being a reasonable one and having for its plain object the desired arrest of the fugitive, was clearly within the scope of the authority conferred, and that it could make no difference whether Clapp expected his agent to pursue that particular course, or one varying in some slight particulars from it.

And even if the power conferred had been accompanied by special directions to frame the advertisement in a particular manner, and in the execution of his power he departed from the precise terms of the instructions given him, but yet pursued substaxxtially those terms, and did xxot undertake to bixxd his principal by obligations materially different from those which he was authorized to coxxtract in his behalf, the act must be regarded as the act of the principal, and he is bound by it.

Between the terms used in the advertisement, and the terms specially authorized by the defendant to be used, there is no appreciable difference. A party would scarcely expect to entitle himself to the offei'ed reward, or to have complied with the condition of “ai’resting” the prisoner, if he did not in addition to that act, place the prisoner within the reach, or return him to the custody of the defendant. The only reasonable construction that could be given to the advertisement, would be that which should bind the person claiming its benefits, to duties at least as arduous and quite as beneficial to the defendant as those required by the offer that was more expressly authorized *232by tbe instructions; and it did not bind the defendant on the other hand to duties in any way more onerous.

A principal can hardly escape from the contract which his agent has made, upon the plea that he has departed from his instructions, when his only departure consists in the use of different phrases, having either the same legal effect, or the effect of securing all that,the contract dictated could have secured, with some additional benefits without additional risk or burden.

There can be no doubt upon the evidence, that the advertisement issued by the agent of the defendant in the defendant’s name, was issued in the regular and direct pursuit of the authority delegated, and in substantial conformity with the instructions communicated.

The declaration was therefore fully sustained in this particular by the evidence offered.

The judge who tried the case made some remarks as to what the consequences would be, if the advertisement had been written in the terms directed by the defendant. Whether these were correctly indicated, we are not bound to inquire, because they related not to the case proved, but to a mere hypothesis which was not believed to 'exist, and of which there was no shadow of evidence. For the same reason we can not suppose that the jury were misled by the remarks, or the defendant in any manner prejudiced by them. It was not intimated that there was evidence upon which the jury could find that there was such an offer advertised, and there is no reason whatever for believing that the jury founded their verdict upon the supposition that there was one, or upon any other facts than what were regularly set up in the declaration and proved.

The next question relates to the ruling of the court below in admitting evidence of the declarations of the plaintiff, offered by himself. The defendant had given in evidence the plaintiff’s declarations, made at different stages of the business of arresting and conveying to Concord, *233and to tbe defendant’s custody, the fugitive prisoner; and, to repel the force of these, the plaintiff produced evidence of other declarations and acts of his own, made and performed during thé course of the same business, tending as it is said to show, that throughout the whole of it he was acting for himself and for no other person.

The plaintiff founds his right to maintain this suit upon an act of his own. He must prove that he arrested the man Seal, and carried and delivered him to the defendant’s custody, or placed him within the defendant’s control, according to the reasonable meaning of the terms of the advertisement. This he is at liberty to prove. But it was not the act of a moment. It consisted of a long series of consecutive acts, from the moment that he set forward at the suggestion of Herrick to make tho arrest at Warner, till the transaction was brought to a close at Concord by the surrender of his prisoner. As many of these subordinate acts as are necessary to complete the proof of the principal one, he is clearly at liberty to prove.

But in the course of its prosecution, and intermingled with the constituent parts of the_ principal act, are various conversations with others, some of which have a tendency to impart to his proceedings tho appearance of being directed by another party, and to give him the character of a mere agent or servant of that party in the transaction; and it becomes a material question whether such proceedings were so directed, and whether he was acting throughout, or at any stage of the business in fact, in subordination to Herrick, at his expense and risk, and for his benefit, or on his own behalf entirely.

In short, it becomes necessary for the plaintiff' in order to make good his claim, not only to prove that he arrested and delivered up the man Seal, but to repel the force of evidence that has been adduced, that in so doing he acted only as the servant of Herrick,

*234It would in many cases avail a party but little to be permitted to prove his own acts, if he were to be confined to these alone, and were obliged to exhibit himself only as a speechless actor, and capable in law of communicating by visible signs only the intent and drift of his proceedings. The law has therefore allowed him in general the protection and benefit of his own words, where they accompany his acts, and indicate the option that he makes at the moment he performs them, between the various characters they are capable of wearing.

It is accordingly held, that where it is necessary in the course of a cause to inquire into the nature of a particular act, and the intention of the person who did the act, proof of what the person said at the time of doing it, is evidence for the purpose of showing its true character. Downs v. Lyman, 3 N. H. 488; 1 Greenl. Ev., sec. 108; Barker v. Clark, 4 N. H. 381; Hadley v. Carter, 8 N. H. 43; Gordon v. Shurtliff, 8 N. H. 260.

And this rule extends so far that parties may give in evidence their own declarations, where they accompany and qualify those of their acts that are material to be proved. Hadley v. Carter, 8 N. H. 43, before cited; Allen v. Duncan, 11 Pick. 308; Kenniston v. Russell, Grafton, July term, 1845.

In Allen v. Duncan, the question was, whether the plaintiff in making a payment did it in behalf of his firm, or on his own account merely. The evidence leaving it doubtful whether the obligation had been assumed by him or by the firm, he was allowed to prove the declarations which he made on paying the money, that it was his own and not that of the company. This was upon the ground that his declaration gave a character to an act otherwise equivocal, at a time when the party had an undoubted right to an option.

To the same effect is the case of Boyden v. Moore, in *235the same volume, page 362, in which the plaintiff proved his own declarations and acts.

Upon reason, and upon the authority of the cases, we are bound to conclude that the plaintiff was properly permitted to give in evidence his own declarations and acts, to show that he acted for himself; and to rebut the force of the evidence that tended to show that he was the servant of another.

Of the same nature was the evidence that was introduced of the act of taking the advice of others, and of the advice that was given him on those occasions. Of itself what was said by another could have been of no relevancy to the cause. But, in the language adopted by Professor Greenleaf (1 Ev., sec. 108), “ the affairs of men consist of a complication of circumstances so intimately interwoven, as to be hardly separable from each other. Each owes its birth to some preceding circumstances; and each in its turn becomes the prolific parent of others, and each during its existence has its inseparable attributes, and its kindred facts materially affecting its character, and essential to be known, in order to a right understanding of its nature. These surrounding circumstances, constituting parts of the res gestos, may always be shown to the jury along with the principal facts.”

The present case shows well the significance of that rule of evidence, and its salutary importance. 'While engaged in the performance of the act for the reward of the successful execution of which he has brought this action, the plaintiff’ called to Ms aid the counsels of other persons. For what purpose ? We think that it would be unreasonable to shut out the light which those consultations might afford in the solution of the principal question in the case. If the advice he sought appeared to be that which he followed, it would show perhaps as clearly as any other fact could show, the intention with which he prosecuted the act to which it related. If he sought and received coun*236sel how he might safely and effectually discharge a duty which he had assumed as the servant of Herrick, that would give one aspect to the transaction. If on the other hand, he asked and received advice about the probable identity of the party whom he had in custody ; about the expediency of conveying him to Concord and the -like; it showed that he doubted and deliberated, as one doubts and deliberates about an affair that he is engaged in for himself. If in the sequel, he followed the advice that he received, the fact show's that his doubts and deliberations were determined, not by referring to the antecedent instructions of an absent party whose commands he had undertaken to execute, but by counsels of the moment, and by considerations springing from the exigency of the circumstances that were the subject of the consultations.

What is said to a man or in his presence, if he assent to it either formally or by acquiescence, and by action, becomes as much the index of his intention, as if he had himself given utterance to the words. The cries of the mob were admitted in evidence in the trial of Lord Gordon, upon the ground that he was constructively present and consenting to their language, and of course a party to the designs that it indicated.

These various declarations and consultations were contemporaneous with the principal act, which commenced with the beginning of the plaintiff’s purpose of making the arrest, and continued through the various stages of progress to the time that the prisoner was delivered to the defendant. The whole should be regarded as one transaction, and it is no matter in what particular stage of it the acts referred to were done.

We are therefore of the opinion that the court correctly admitted the evidence at the trial, and that the exceptions must all be overruled.

Judgment on the verdict.