5 Kan. 490 | Kan. | 1870
By the Court,
Whether the maxim, de minimis non curat lex, has become entirely obsolete in Nansas, or whether it has any practical application in this case, is a question that springs up in the mind involuntarily and unsought at the very threshold of this investigation.
The amount in controversy is hardly of sufficient magnitude to warrant the expenditure of so much time, labor and money, as must necessarily be expended in a prolonged and possibly, acrimonious litigation as this probably has been and is likely to be. The pecuniary
It almost seems like trifling with public justice to allow a case of this kind, — so diminutive in the amount involved and of so little intrinsic merits, — to be prosecuted by either party in any court of justice. But We have, however, read carefully the whole of the nineteen pages of the petition in error, and the whole of the eighty-two pages of the transcript of the record below, and have examined carefully the lengthy briefs of counsel, and a great many of the numerous authorities therein referred to, and we are satisfied that a great many of the forty-nine different assignments of error, and the thirty-six different exceptions taken to the rulings of the court below, need but very little if any consideration from this court, and particularly so in a one cent case, as this is. "With perhaps two or three exceptions, the plaintiff in error has but little room to complain of the rulings of the court below. They were generally correct. And while a few of them may seem to be-a little too favorable to the defendant in error, there are as many others that are equally favorable to the plaintiff in error. But none of them, with the said two or throe excéptions, are of sufficient magnitude to warrant a reversal of a one cent judgment, or perhaps of any judgment.
During the progress of the trial in the court below, two important questions arose, and these were about the only important questions in the case: First, Did An-
thony employ the express company to carry a certain package to Hartford, Connecticut, or did he employ them to carry it only to the nearest point to Hartford, (which was New York city,) to which this company carried packages? Second, And did he employ them as a collecting agent, to collect a certain draft on the Putnam fire insurance company, at Hartford, or did he employ them only as a carrier of the draft?
opSA Witnesses. It was necessary, at the trial in the court below, for the plaintiff to prove that the express company agreed to carry the package to Hartford, and to collect the draft, and for this purpose the plaintiff was himself examined as a witness, and among other things he testified as follows, his counsel asking the questions and he answering them:
Question. “ What sort of business do they (the express company) hold themselves out as transacting ?”
Answer. “ They hold themselves out to deliver packages, and property, and make collections.”
Question. “Where?”
Answer. “At various points and Hartford.”
Question. “ What sort of business do they hold themselves out as transacting ?”
Answer. “ The carrying of goods and the collecting of bills.”
Answer. “ At this point and hundreds of other points in the United States, Hartford, among the rest.”
This evidence was duly excepted to by the defendant at the time.
The plaintiff claims that this evidence was introduced solely for the purpose of proving that the defendants were common carriers, but as that does not seem to be one of the disputed questions in the case, a jury would naturally think it was introduced for some other purpose. The company admit that they are common carriers, though not to Hartford, Connecticut; and admit that whatever they undertook to do for the plaintiff, they undertook as common carriers.
But we will assume that the plaintiff had the right to prove that the company held itself out as a common carrier between the cities of Leavenworth and Hartford, and also to prove that the company held itself out as a common collecting agent between said cities; and then the question arises whether they had the right to prove said facts in the manner that they attempted to prove them, that is: by simply proving the oqmion of the plaintiff’, and not by proving the facts upon which these opinions were founded.
If' these opinions were founded upon something within the personal knowledge of the witness, such as conversations with the company, or such as cards, circulars, or advertisements, known by him to have been issued or authorized by the company, he could have testified as to such conversations, and after laying the proper foundation, ho could have introduced said cards, circulars, or advertisements in evidence; but if his opinions were founded upon what third parties had told him, (mere heresay testimony,) he could c*- testify at all as to
The court below also erred in permitting said plaintiff' to testify concerning certain statements made by one Schermerhorn.
In: AnatrasiONS of an agent of Schermerhorn was an agent of the company, ., _ . ... _. ,i,,i but there is no evidence showing that the statements made by him came within the scope of his agency. They were made about a transaction long after the same occurred, and with which Schermerhorn had no connection; and there is no evidence tending to show that Schermerhorn had any authority from the company to make such statement; hence, his said statements were not binding upon the company, and could not be evidence against them.
~We are, therefore, under the necessity of reversing the judgment of the court below, and of remanding the case back for a new trial, and for further proceedings.
