84 Minn. 211 | Minn. | 1901
On January 6, 1898, the C. E. Sherin Agency, a corporation, hereinafter called the “Agency,” recovered a judgment upon a promissory note in the district court of the county of Ramsey against the trustees of the Atlantic Congregational Church of St. Paul, for the sum of $703. The plaintiff herein, Milton B. Whitney, a judgment creditor of Clarence E. Sherin and Carrie E. Sherin, began an action against them upon his judgment, then amounting to the sum of -$1,769.69, in the district court of the county of Ramsey, and caused a writ of attachment to be issued against them, which was delivered to the defendant as sheriff of that county. Thereupon the defendant, as such sheriff, by virtue of the writ levied upon and attached all the title and interest of
Thereupon the plaintiff brought this action to recover from the sheriff the amount of the judgment so levied upon by virtue of such writ of attachment. The answer alleged, besides other matters, that the judgment upon which the attachment was levied was the sole property of the agency, and that neither of the defendants in the plaintiff’s attachment suit had, at the time such levy was made, any interest whatever therein. This was denied by the reply, and the issue so made was the principal one litigated on the trial. The trial court at the close of the plaintiff’s evidence dismissed the action, on motion of the defendant, on the ground that the evidence conclusively established the fact that the judgment was the sole property of the agency.
The plaintiff appealed from an order denying his motion for a new trial. The record presents for our consideration two general questions:
1. Did the trial court err in excluding certain alleged declarations and admissions of Clarence E. Sherin, the treasurer and manager of the agency, as to the ownership of the judgment in question? The alleged admissions were made to the pastor and one of-the trustees of the church, and were to the effect that he (Clarence E. Sherin) was the owner and in possession of the note upon which the .judgment against the church was based, and that the agency held it only for collection. The plaintiff here urges the exclusion of this evidence as error because it tended directly to support his claim made'on the trial that Clarence E. Sherin in fact owned both the note and judgment. The contention of the plaintiff in this connection is that the declarations of Clarence E.
It is true that declarations of officers of a corporation within the scope of their authority are admissible in evidence against the corporation if otherwise material and relevant. The rule rests, however, on the doctrine of agency; for such officers are mere agents, and their declarations are binding upon the corporation only when made in the course of or connected with the performance of authorized duties of such officers. Browning v. Hinkle, 48 Minn. 544, 51 N. W. 605. There was no evidence in this case that the alleged declarations of Sherin were authorized by the corporation, or were connected in any manner with the discharge, of any duties by him as an officer or agent of the corporation. This case then falls within the rule that the declarations of an agent cannot be received in a suit to which he is not a party to establish the alleged fact that he, and not his principal, is the owner of the property in controversy. Greene v. Dockendorf, 13 Minn. 66 (70); Presley v. Lowry, 25 Minn. 114; Van Doren v. Bailey, 48 Minn. 305, 51 N. W. 375.
It is further urged that the declarations were admissible because made by Sherin while he was in the actual possession of the noté upon which the judgment rests.
The short answer to this claim is that there is no evidence in this case, outside of his alleged declarations, that he then had the note in his individual possession. It was necessary to establish the fact of his possession by evidence other than his declarations. Such evidence, however, need not be conclusive. His possession of the note'as an officer or agent of the corporation would not be sufficient to render his declarations as to his ownership thereof admissible against the corporation or those claiming through it. Any other rule would permit such an officer or agent indirectly to turn over the entire corporate property to his creditors, by admitting or declaring that he owned it, — an unthinkable proposition. It follows that the trial court did not err in excluding the proposed evidence.
' 2. The other general question is, was the evidence, when the
We answer the question in the negative. The admitted conduct of the defendant, as sheriff, was, in legal effect, a release of the plaintiff’s attachment without his consent. Such being the case, it must be conceded that the burden was upon the defendant to justify his action by showing that neither of the debtors in the attachment suit had any leviable interest in the judgment against the church. 1 Shinn, Attachm. §§ 892, 396. The question of the burden of proof, however, is not a practical one in this case, for the plaintiff on the trial assumed the burden of proving that the defendants in the attachment suit, or at least one of them, owned the judgment upon which his writ was levied.
The evidence received by the court on behalf of the plaintiff established beyond reasonable controversy that the father of Carrie E. Sherin was the original payee and the owner of the note against the church, that he sold it to her, and that she sold it to the agency, which never parted with it. The plaintiff, however, claims that there was evidence tending to show that Clarence E. Sherin at some time after the agency became the owner of the note, became the owner thereof in some undisclosed way. The only basis for this contention is certain declarations of Sherin and of the attorney of record of the agency in its suit on the note against the church. These declarations were neither competent nor relevant, for reasons already suggested.
Order affirmed.
