88 Vt. 15 | Vt. | 1914
Lead Opinion
The plaintiffs were dealers in lumber, and had on hand in 1904, in 'Wheelock and Burke, a quantity of lumber known as box boards. Iphus and Lucius Gordon were at that time engaged in the manufacture of lumber at Lyndonville under the name of Gordon Brothers. The defendant is an uncle of the Gordons, and was then cashier of the Lyndonville National Bank. The suit is brought to recover for box boards delivered at the mill of Gordon Brothers, which the plaintiffs claim were bought by Lucius Gordon, acting as defendant’s agent.
The delivery of the lumber commenced in June, 1904, and continued until February, 1905. The defendant was absent on a European trip from August twentieth until Thanksgiving day. The plaintiffs had no talk with him about the lumber until after his return. On the second day of December plaintiff Taplin saw him in the presence of Lucius Gordon, and after some conversation the defendant wrote, signed and delivered to Taplin a writing addressed to the plaintiff firm, which reads as follows: “My understanding of the agreement between you and the Gordon Bros, is that I shall stand bound to you to pay for the box boards, out of the proceeds of the boxes, when finished, at the rate of $10. per thousand delivered at their factory in Lyndon-ville, as counted in. ’ ’ This is followed by the word ‘‘accepted, ’ ’ with the signatures of Gordon Brothers and Taplin & Rowell. According to the plaintiff’s book, the admissibility of which is questioned,' nearly two-thirds of the lumber sued for had been delivered when this writing was given. Defendant’s counsel construe the writing as an undertaking regarding future deliveries, and the defendant so characterized it in his testimony. Plaintiffs’ counsel treat it as referring to the agreement under which the previous deliveries had been made. The court left it for the jury to say what agreement was intended, and to this the defendant excepted.
It is apparent that the writing is not one that could be construed by the court and he made conclusive of the defendant’s liability. Its language is capable of different constructions. It may refer to the arrangement under which the preceding deliveries were made, and amount to an acknowledgement of previous liability. It may refer to an arrangement which the defendant supposed was then being made. Its con
The defendant excepted to certain instructions of the court regarding the effect to be given to the writing, — the consideration of which will be deferred until the case has been more fully presented in connection with other questions. The plaintiffs recovered the amount of their claim, and the defendant moved that the verdict be set aside for want of evidence to sustain it. It is now urged in support of this claim that there was no evidence tending to show an undertaking on the part of the defendant to pay the plaintiffs more than the money which came into his hands, and no evidence tending to charge him with any liability on account of the lumber which came from Burke. The first of these objections will be considered now.
In making out their case the plaintiffs called Lucius Gordon and the defendant. The defendant testified that he had no talk with Gordon about this matter until after his return from Europe. Gordon testified that before the trade for the lumber was closed he had a talk with the defendant about it, but plaintiffs failed to get from him any positive evidence of an •authority to purchase on defendant’s credit, and the only statement of that character came from plaintiff Taplin’s testimony as to what Gordon communicated to him. With reference to this situation it is suggested in plaintiff’s brief that there is evidence that Gordon obtained some authority from the defendant and told Taplin what that authority was, and that the testimony of Taplin, received without objection, may be used to show the scope of that authority. It is certain that a party cannot, against his objection, be charged with an agency on the statements of the supposed agent made out of court. Prouty v. Nichols, 82 Vt. 181, 72 Atl. 938, 137 Am. St. Rep. 996. Whether the plaintiffs are entitled to any benefit from these statements because of the defendant’s failure to object to them will appear later.
It is clear, that the testimony of Gordon tends to show that some arrangement to secure plaintiffs for the price of the lumber was entered into between himself and the defendant and communicated to Taplin. The claim of the plaintiffs is that Harris became unconditionally holden for the price of the lumber, and that the lumber was to be charged to him when delivered, and be
.Other features of the evidence should be referred to, as bearing upon the positions taken by the parties in' their testimony, and upon their understanding of the situation at the time the writing was executed. Gordon testified that this lumber was manufactured' as it came in, in a very short time, and that Harris knew it was being manufactured into shooks. Harris testified that he did not know that Gordon Brothers were in the box business until after his return from Europe. Taplin testified that he was probably in Lyndonville every month that summer; that it was his wish to see Harris, but that he made no special effort to do so'; that the day the writing was signed he found Gordon in the yard at the mill, hut did not notice about the lumber; that he had talked with Gordon about whether they had got any of the lumber manufactured, and that he did not think any of it was manufactured until fall. He had received no pay on the lumber at the time the writing was given. He afterwards received from Harris two payments as his share of the proceeds of two subsequent shipments.
Taplin testified in direct-examination, in substance, that on the occasion when the writing was given he told Harris that they had been delivering box boards at Gordon Brothers’ mill and
The question presentéd is regarding the use of Taplin’s testimony as to what Gordon told him that Harris had agreed to. It is said in Boville v. Dalton Paper Mills, 86 Vt. 305, 85 Atl. 623, with reference to an exception to the charge, that the evidence referred to in the charge came into the case without objection, and that it was not error for the court to make use of it. The situation here is this. The testimony came in without objection. The question of agency was submitted upon the whole evidence. No exception was taken to the charge in this respect. No distinction is made in the defendant’s brief between the testimony of Taplin and that of Gordon. So the only question is' whether Taplin’s testimony is evidence tending to establish the agency. The law does not recognize it as legitimate evidence, but it may nevertheless have a probative effect. It was said by Judge Peck in Cavendish v. Troy, 41 Vt. 99, that where evidence has a moral tendency to induce belief of the truth of the disputed fact, although the inference from it is too remote to constitute legal evidence, the right to object to it is waived by suffering it to come in without objection. See also Parker v. Boston & Maine R. R., 84 Vt. 329, 347, 79 Atl. 865. Mr. Wigmotfe, 'in §10 'of his work, treats the proof of hearsay statements as evidence having probative value, the admission of which is forbidden by a specific rule'; and refers in §11 to the hearsay
The case as now presented is to be considered with reference to the court’s instructions regarding the effect of the writing. Gordon’s testimony was evidence tending to show that Harris knew, at the time he gave the writing, that Gordon Brothers had purchased lumber of the plaintiffs, and that some of it had been delivered and manufactured. With these facts found, it is clear that the writing itself might be considered an acknowledgement of a previous understanding regarding the manner of payment. But according to Taplin the receipt of the avails merely determined the pay-day, while according to Gordon the receipt of the avails raised the obligation to pay; and this feature of the evidence gives rise to a question regarding the effect to be given the writing as to which we are not agreed.
The court charged in substance that if the sale was to Harris and on his credit, and. Gordon had authority to buy for Harris and pledge his credit; or, if Gordon did not have the authority at the time, if Harris .ratified the contract after it came to his knowledge; then the plaintiffs could recover. The correctness of this instruction is apparent from what has already' been said. No issue was framed, — and as the case stood none could properly have been submitted, — on the basis of Gordon’s testimony that there was a sale on the strength of an agreement by Harris that he would see that the plaintiffs had their pay out of the proceeds of the shoóks when sold.
The court charged further that if the writing of December second referred to the agreement entered into before the lumber was delivered it was a ratification of the acts of Lucius Gordon in the purchase of this lumber according to the limitations in that letter”; and this was excepted to. The instruction was erroneous. If the agreement was that testified to by Taplin and claimed by the plaintiffs on the- trial, the writing was not a
. In a supplemental charge the court referred to its inadvertence in saying that the writing would be a ratification .instead of evidence tending to show it, and changed the instruction by saying that the writing was evidence tending to show that the defendant ratified the contract made by Gordon, if it was found to refer to that contract; and that in connection with the facts which the other evidence of the plaintiffs tended to show, if those facts were found, it would be a ratification. An exception was taken to this further instruction. A majority of the court think -the instruction was justified by the evidence. Taplin ’s testimony tended to show that his firm sold the lumber to the defendant through Gordon as his agent, and that the defendant 'ratified the contract at the time the writing was drawn by responding “all right” to what Taplin said, regarding it. The contract as testified to by Taplin included the provision that payment was to be made as the shooks were sold, and defendant’s writing says that he is to pay plaintiffs for the box boards out of the proceeds of the boxes. In view of these facts it is considered that the writing tends to show a ratification of the contract claimed by the plaintiffs, although it does not cover all its terms; and that this, in connection with such other facts as might be found from the evidence, would justify a finding of ratification. The exception taken did not specify, as a ground of objection, the generality of the reference to the facts which, in connection with the writing, would constitute a ratification.
It may be noticed here that in the opening of the plaintiff’s brief the agreement is treated as a purchase on the credit of the defendant, in pursuance of which the lumber was charged directly to the defendant; and that after discussing the language of the writing of December second, it is said that when the defendant agreed to pay for the lumber out of the proceeds of the boxes “it became his duty to see that the proceeds for-which he was holden were turned into the proper channel.” If the plaintiffs were claiming to recover on the latter ground, it would be necessary to consider whether a recovery could be had under the common counts.
It is not necessary to inquire whether the instruction first given on this subject was correct, for the only exception applicable to the instruction as given was, not to the correctness of the submission, but to the fact that the question was submitted.
In a supplemental charge the court gave further instructions on the subject; saying among other things that if this lumber was sold to the defendant and was kept and used up in the business without any new arrangement being made in respect
The verdict was based upon the entries in the plaintiffs’ book, which was received under objection. The plaintiffs' kept no account of the lumber as it was loaded for delivery. The persons who drew the lumber for the plaintiffs had small account books of their own, generally called pass-books in the evidence, which they carried with them, and on which Gordon entered the amount of the lumber drawn as he counted it off. Plaintiffs’ Ex. 4 is the book onto which Mrs. Taplin, the plaintiffs’ bookkeeper, copied the entries made by Gordon as the passbooks were brought to her from time to time by the teamsters. She testifies that she copied them correctly, and that she kept no other account. The books generally, if not always, contained the personal accounts of their owners, and were taken away by them after the items were copied. Nothing further appears regarding them, except that the plaintiffs have made no effort to secure them. Gordon kept a book of his own on which he entered the items written in the pass-books, and he testified that he had searched for this book and could not find it.
We think the book was admissible in connection with'Mrs. Taplin’s testimony that-the items were correctly drawn off. It is true that she' knew nothing as to the correctness of the items copied. But these books were the record kept by the purchaser, of the lumber he received. Gordon was beeping the count of •the lumber for both parties; entering the items contemporaneously in the books of plaintiffs’ men and in his own book. The teamsters did not make the entries in their books or know that they were correct. The book introduced was in the nature of testimony to an admission. It is'true that the pass-books wér'e the admission itself, and that their production would test the accuracy of the transcription. But we think the admissibility of this proof of the admission ought not to be made to depend upon the production of books of this description, kept as these books were. If Mrs. Taplin had made her entries from contemporaneous telephonic communications from Gordon as 'agent, she could have produced her book and testified to the accuracy of the account, notwithstanding the want of a test. ' '
Concurrence Opinion
concurring. While I concur in the result reached in the majority opinion, I cannot agree that on the evidence the plaintiffs’ case hangs by such slender'threads as there indicated,- and consequently am moved to express my views by way of this concurring opinion.
In 1904 the plaintiffs were dealers in lumber in Orleans and Caledonia counties and had, in the prosecution of their business, a quantity of box boards, so-called, being poor lumber suitable for boxes. ■ Iphus and Lucius Gordon were then engaged in the manufacture of • lumber -at Lyndonville, Under-the-firm name of Gordon Brothers. At the same time their uncle, L. B.' Harris, the defendant, was cashier of Lyndonville National Bank. ' In this suit'the plaintiffs seek to recover the'contract price for certain lumber for'box boards, some drawn from Wheelock and some
As to what was said and done on that occasion Taplin testified as follows:
Q. Now tell us what you told Mr. Harris as to whom you had delivered those boards and to whom you charged them.
A. Mr. Gordon and I went into the bank for that purpose and I told him that we had been delivering these box boards there and charging them to him. I said Mr. Gordon said before we made any arrangement that you were to pay for them, and he sat down and I said, ‘ ‘ I think it is better for you to write something for me to take back to the office, something might happen to you,” and he said, ‘‘this is the paper and what do you want I should write?”
Q. When you told him you had sold the boards and charged them to him by reason of what Mr. Gordon said, what did he say?
A. He said “all right,” he said “What kind of a writing do you want ? ’ ’
Q. Did he make a writing there ?
A. He did, he sat right down and wrote on the sheet of paper before him.
Q. Was anything said at that interview or at that time as to whether that writing should apply to future deliveries?
A.- We had not any to deliver in the future, box boards.
Q. Was not anything said in relation to future deliveries?
A. No, we had them all in, we supposed, except picking up the yard. They did draw a few square edged boards after-wards, but I did not intend to have them drawn.
Plaintiff Taplin further testified that Defendant’s Exhibit A was then and -there written and signed by the defendant, and signed as “accepted” by Gordon Brothers and by the plaintiffs. In cross-examination, Taplin being asked whether this writing embodied the agreement that he made with Lucius Gordon in June, 1904, answered:
*28 "' A. Not exactly, The agreement that we had was that they should pay for them as they shipped them, that is, as they made them up in shipments, that is, Mr. Harris should, the money was to come to him and he was to pay for them. He says, “What was your agreement?” and I told him.
Q. The question is, in what particulars does this agreement vary from the one you made with Mr. Gordon?
A. With regard to the paying out of the — -as holding back —I think something of that kind, and still it might all be right in' there. He wrote it to suit himself and I did not pay particular attention how he was going to pay, only he was going to pay as fast as he got it out of the box boards ....
Q. Now Mr. Taplin, you had sold those box boards to be paid for out of the money that came from their manufacture, is that right?
A. I sold them to be paid for when they had manufactured them.
Q. You mean before they got their pay for them?
A. When they got the money out of them, that is, they did not want to pay for them until they were shipped.
Q. You had sold them to be paid for as soon as manufactured or as soon as shipped?
A. Yes.
■ ' lie further testified in'cross-examination that he supposed the writing of December 2, (Exhibit A) covered the understanding of the arrangement made by him and. Lucius Gordon, and that the defendant, when he gave that Writing, verified his .understanding of that trade; that he interpreted it as indicating that ■the defendant was to pay for the 'lumber; that he took the writing because he thought it better to have something from the ■ defendant,- — to show he'was consenting to the'lumber being charged to him; that thé defendant first Wrote the paper showing ■the lumber to be taken “work measure,” and on reading it over Mr. Gordon said, “it was to be” “counted in,” and “we agreed to that there and Mr. Harris changed it” accordingly.
'Exhibit A reads:'
“December 2
“Taplin & Rowell,
“Gentlemen:'
“My understanding of the agreement between' you and Gordon Bros, is that T shall stand’bound to you to*29 pay for the box boards, out of the proceeds of the boxes, when'finished, at the rate of $10 per thousand delivered at their factory in Lyndonville, as counted in.
<£L. B. Harris.
“Accepted,
£ £ Gordon Bros.
£ £ Taplin & Rowell, by M. M. Taplin. ’ ’
The defendant’s evidence tended to show that Lucius Gordon was not his agent, and had no authority to act as such, in the purchase of the lumber in question; that defendant had no talk with plaintiff Taplin at a time when Lucius Gordon was present concerning the payment for lumber which Taplin & Rowell had sold and delivered; and that the writing (Exhibit A) did not relate to “lumber that had been delivered, it was only for the future, ’ ’ nothing was said about boards that had been delivered, “it was about boards that were to be delivered”; that on the occasion of making Exhibit A, Taplin and Lucius Gordon came to the bank and told the defendant that they had made an arrangement in regard to the delivery of the box boards and that they wanted to do the business through the bank. Defendant’s evidence further tended to show that the lumber was sold by the plaintiffs to Gordon Brothers, not to the defendant, and that the arrangement between plaintiff Taplin and Lucius Gordon was that the money from the sale of box shooks by Gordon Brothers was to go through defendant’s hands to the plaintiffs to pay for the boards; that this arrangement was communicated by Lucius Gordon to the defendant; and that nothing was said by the plaintiffs about charging the lumber to the defendant.
On the question of agency, though the testimony of plaintiff Taplin that at the time of making the contract of sale, Lucius Gordon told him in effect that he, Lucius, was authorized to act therein as the agent' of the defendant, and as to what the latter had agreed to, was hearsay, yet it was received in evidence without objection, and it was to be considered and given its natural probative effect as if it were in law admissible. Diaz v. United States, 223 U. S. 442, 56 L. ed. 500, 32 Sup. Ct. 250. Moreover, the plaintiffs’ evidence as to what was said and done on the occasion when Exhibit A was drawn up and signed also tended to show that Lucius Gordon was the authorized agent of the defendant in making the purchase, to say nothing of the latter’s
Not only did the plaintiffs.’ parol evidepce to which reference has been made tend to show that the original sale was made to the defendant, but Exhibit A, if it related to that transaction as Taplin testified, was also evidence having the same tendency. It was drawn up by the defendant in connection with the talk as to what the agreement was, and it was signed by the parties, including Gordon Brothers by Lucius Gordon, the. man who acted in making the purchase. There can be no doubt that conceding to the foregoing evidence the greatest probative force to which in the law of evidence it was fairly and reasonably entitled, it was sufficient on the questions named to justify a verdict ip favor of the plaintiffs, and consequently the part of the charge under consideration was without error. Bass v. Rublee, 76 Vt. 395, 57 Atl. 965; Comeau v. Manual & Sons Co., 84 Vt. 501, 80 Atl. 51; Fitzsimons v. Richardson, Twigg & Co., 86 Vt. 229, 84 Atl. 811.
Regarding Exhibit A and defendant’s ratification of the contract of the purchase, the court charged the jury:
“The plaintiffs say that (Exhibit A) refers to this very agreement that was made when Lucius Gordon contracted' for the sale of this lumber on the strength of the credit of the defendant and that this is the agreement that is referred to. Now if that is the agreement referred to or if it refers to that agreement and the real talk with reference to it, that would be a ratification of the acts of Lucius Gordon in the purchase of this lumber according to the limitations in that letter.”
Exception was taken to the statement that Exhibit A would be a ratification of the sale to' the defendant. This exception was well taken. The interpretation of that writing could not be ruled as a matter of law. Whether the writing had reference to the original agreement made between the plaintiff Taplin and Lucius Gordon as to the plaintiffs’ evidence tended to show, or only to such lumber as should be delivered in the future, as defendant testified, was'a question of fact in dispute; the words in the writing “that I shall stand bound to you to pay for the box boards, out of the proceeds of the boxes when finished, ’ ’ were ambiguous; the interpretation of the instrument depended upon facts aliunde in connection with the written language to ascertain the intent of the parties, and became a mixed
“In respect to the letter of December 2d (Exhibit A), it is called to my attention that I charged that this letter standing alone would amount to a ratification of the purchase. I intended to say that that letter was evidence tending to show the defendant ratified the contract made by Lucius if you find it referred to that contract and with the other evidence on the part of the plaintiffs, if you find the facts established as the plaintiffs’ evidence tends to show, that would be a ratification. If you fail to so find, why then it would not.”
To the court’s statement that the letter is evidence tending to show a ratification of Lucius Gordon’s arrangement and with the other evidence would be sufficient to warrant a ratification, an exception was saved.
It has already been seen that if this writing related to the original contract of sale, it was evidence tending to show what the contract was, and in addition thereto it may be said, in disposing of this exception, that if the writing related to that contract, it had a tendency to ratify it, and with the other facts as to the agency, the making of the contract, the talk on the occasion when the writing. (Exhibit A) was drawn up and signed, the fact that plaintiffs then supposed the box boards had all been delivered ‘ ‘ except picking up the yard, ’ ’ and the purpose of making the writing, all established in accordance with the tendency of plaintiffs’ evidence, there can be no reasonable doubt as to the soundness of the charge that it would be a ratification of the contract.
It follows from what has been said that the part of the charge, to which exception was taken, that if the credit was given in the first instance to the defendant, through the agency of Lucius Gordon,, and the latter had authority to buy this lumber of the plaintiffs, then the plaintiffs could recover for so much lumber as they furnished under the contract; or if Lucius Gordon undertook to purchase this lumber on the credit of the defendant and the plaintiffs sold the lumber under that ar
The exceptions state that the plaintiffs’ evidence tended to show that substantially all the box boards delivered by them at Gordon’s mill were manufactured into box shooks and sold and pay received therefor and deposited in the Lyndonville National Bank during the summer, fall, and winter of 1904, except 28,-200 feet from Burke, which, the plaintiffs claimed their evidence tended to show, was not manufactured into shooks, but that some four or five thousand feet thereof were used by Gordon Brothers to board up their mill, and that a little later the mill and the balance of this Burke lumber came into .the possession of the defendant by whom it was treated and used as his own. This claimed tendency of the evidence was denied by the defendant, but a careful examination of the transcript, which is made to control, shows the statement in the bill of exceptions fully warranted. Exception was taken to the charge to the effect that if these boards were sold under the same contract and under the same arrangement as the rest of the box boards, and the defendant had them by delivery to Gordon Brothers, and they were kept and used by them and by the defendant without any new arrangement being made respecting them, as the plaintiffs’ evidence tended to show, then the plaintiffs could recover therefor. This part of the charge' was without error.
Plaintiffs’ account of the lumber sold to the defendant was kept on two pages of a book marked Plaintiffs’ Exhibit No. 4. The evidence tended to show that the plaintiffs’ bookkeeper correctly took the statements of the different amounts of lumber delivered from small pass-books carried by the different teamsters who drove plaintiffs’ teams in drawing the lumber, and brought these books to the bookkeeper for that purpose; that the teamsters owned these pass-books, oftentimes and perhaps always, had their personal accounts on them, and after the figures showing the amounts of lumber were taken off by the bookkeeper, they carried the pass-books' away; that the entries of the lumber on all the different pass-books were in the same handwriting. Exhibit 4 was admitted in evidence subject to defendant’s objection that it was not an original book. Lucius
After verdict and before judgment defendant moved to set aside the verdict on various grounds, and on exception to the overruling of the motion, he relies on the second, third, and eighth assignments, which were as follows: Second, because upon the evidence there could not be a verdict rendered in excess of $672.95; Third, because the jury must have charged the defendant for 28,200 feet of lumber that on all the evidence was not manufactured into box shooks; Eighth, because there was no evidence tending to show liability on the part of the defendant except for funds that came into his hands, and it appeared that he had put over to the plaintiffs their share of all such funds. Yet the discussion of the evidence already had is sufficient to show these assignments to be without merit, and they need not be further noticed.
In this vieio of the case I concur in affirming the judgment.
Dissenting Opinion
I dissent from the holding that the supplemental charge regarding the writing was correct.
The evidence of a conditional undertaking was not in the case as a ground of recovery, but because the witness Gordon failed to come up to the expectations of the plaintiffs. The shortage was one which left the contract testified to different in nature from the one claimed — a contract outside the pleadings and the theory of the trial. The only contract in issue was that shown by Gordon’s declarations testified to by Taplin, and the court’s reference is to that contract as against any contract touching future deliveries which the defendant claimed the writing referred to. The terms of the writing had no tendency to show a sale to Harris or an acknowledgement of one, either alone or in connection with other facts which the evidence tended to establish. The circumstance of giving it might, in connection with other possible findings, have had that tendency. But the charge as corrected still makes the writing itself evidence tending to establish a ratification of the contract sued upon, which in connection with other facts not designated would amount tó a ratification.
I am authorized to say that the Chief Justice agrees ivith me in this.
