Tozier v. Crafts

| Mass. | Jan 8, 1878

Ames, J.

The objections taken by the defendant to the admission of the letter to the plaintiffs from their agent, Vietts, do not appear to us to be well founded. The letter was not used as a substitute for an original order, or as a copy of an original entry or memorandum. It was not secondary evidence in any proper sense of that term. It was not offered for the purpose of proving that a contract had been made between these parties at some previous time, and entered in the order-book, but as independent evidence that the defendant, by the terms of the letter, ordered certain liquors to be furnished to him by the plaintiffs, which, in pursuance of that order, they did afterwards furnish. That is to say, it was offered as an original communication from him, or with his sanction and authority. If so, the fact that the substance of the same order had previously been entered in a book was entirely immaterial. • '

The question then arises, was it his letter ; or, in other words, was there any evidence in the case which would justify the jury in finding that it was written on his behalf, and with his authority and consent. There was evidence that the defendant made a declaration to Vietts to the effect that he, the defendant, had “bought out” a billiard-room and “was going to put his brothers in; ” that they were to “ run the place; ” that they would want some liquors, and that he wished some might be sent. His brothers afterwards occupied the place, and appeared to do all the business of the saloon. The jury might have found upon this evidence that the two brothers were his agents, and that, when he said that he intended to put them in the saloon which he had bought and to have them “ run the place,” he meant to be understood that it was his saloon, under their management and superintendence. There was oral evidence tending to show that these liquors had been bespoken by the defendant for the supply of that place. If the jury were satisfied that these brothers were agents of the defendant to procure such supplies, then the act of one of them, requesting Yietts to write to the plaintiffs at once for the liquors, was an act within the scope of his agency. The witness having testified that in compliance with the request he wrote the letter, and that the order contained in the letter was in accordance with the order previously given by the defendant in person, it was immaterial whether the brother of the defendant read the letter and knew its contents or not. Upon proof of the agency, the letter and the conversation which Yietts had with the defendant’s brother at Hartford were admissible. It does not appear from the bill of exceptions what the instructions of the presiding judge upon this point were, but the excepting party fails to point out any particular in which they were erroneous, upon the general question of agency.

The evidence as to the conversation and declarations of the defendant’s brother, to the effect that the defendant was a member of the firm of Crafts Brothers, was offered, not to prove that he was in fact a member of that firm, but merely to show he was so represented to the plaintiff. This evidence was admissible to account for their acceptance of the notes, and to rebut the presumption that they were to be considered as a payment of the account. It was competent evidence to show that the plaintiffs acted under the influence of a misrepresentation, and did not intend, by accepting the notes, to release the defendant and substitute other persons in his place. If such were the case, the production and surrender of the notes at the trial would entitle the plaintiffs to claim upon the original account for goods sold and delivered, as if no such notes had been given. French v. Price, 24 Pick. 13. Melledge v. Boston Iron Co. 5 Cush. 158. Tucker v. Drake, 11 Allen, 145. Shaw v. Methodist Episcopal Society in Lowell, 8 Met. 223. Exceptions overruled.