Greene v. Chickering & McKay

1. A deposition taken by one party to a suit, when filed, may be read by the other, in evidence ; and any objection to such deposition which the party against whom the deposition was taken, would be bound to make before trial, must equally be made by the party taking the same, if he object to its reading. 2. The declarations of an agent at the time of selling property, tending to shew that he claimed and sold the property as his own, are competent evidence on behalf of a purchaser from such agent, to shew the title in such agent — and the purchaser will be entitled to set off any debt due him from such agent, 3. Such defence may be made under the general issue.

APPEAL from the St. Louis Circuit Court. I. As to the exclusion of Floyd’s deposition. This deposition was taken on the part of th® plaintiffs. Both parties appeared at the examination, and no objection was made on either side 'to the commission, nor was any objection taken afterwards, till the moment when the deposition was offered on the trial. ' 1st. The action of the parties under the commission, was a waiver of its irregularity. Dawson vs. Tibbs, 4 Yeates’ Rep., 349. In that case the commission issued without an order of Court, but the parties had acted under it, and the Court held the irregularity waived. See also Hall vs. Lay, 2 Ala. Rep., 529. 2nd. Particularly, the plaintiffs who sued out the commission, ought not to be allowed to set up an irregularity in it, to exclude testimony taken by themselves under it. 3rd. The rule of the Court required the objection to be taken before the trial. The object of the rule was to prevent surprise, and this object was wholly defeated by the decision of the Court 4th. The case was such, that the defendant must of necessity have been surprised in fact; — and a verdict obtained in that way on incompetent evidence, ought to have been set aside. That the agent under the circumstances disclosed in Floyd’s deposition, was not a competent witness. See Theobald’s Prin’l and Agt., 320. II. As to the exclusion of evidence of Trenchery’s declarations. The defendant claimed the benefit of a set off against Trenchery, and to let in this defence, he offered to shew that Trenchery held himself out as principal, and in fact declared that while the pianos were in his possession, that he was owner. If an agent hold himself out to the world as principal, persons dealing with him may set off claims against him, in the same manner as if he were the principal in fact. Story Ag. 431 — 2. Theobald’s Prin’l and Agt, 307. And this defence is proper under the general issue. 1st Chit. PI. 570, and cases,there cited. The declarations of the agent to the effect, that he was principal were really the foundation of the defence. Besides, it is a general rule, that declarations accompanying possession and explaining it are always admissible. 3rd Phil. Ev. (Cow. Ed.) 597 to 603, where the cases are collected and compared. See also 4 Mo. Rep., 18, to the same effect. POINTS AND AUTHORITIES 1 The deposition of Floyd was properly excluded, as there was no dedimus under which it was taken; and as it was taken on behalf of plaintiff below, appellee here, it did not when offered by the other party, come within the rule of Court, requiring exceptions to be filed, nor if it did, was this such matter as was required to be excepted to. 1. Rev. Code 1835, p. 250, §3, and p. 221, §19, and p. 222, §21. The case cited from Tate’s Rep. by opposite counsel I have not seen. The case in 2 Alabama Rep. 529, is different from this. There was a written consent of the counsel; besides, thefe was a seal in that case. 2. The hearsay! statements of Trenchery, the witness of plaintiff, which was offered by defendant below, was rightly excluded:— 1st. Because it was hearsay. 2nd. Because if it was intended to impeach Trenchery, or lessen the weight of his testimony, a proper foundation had not been laid, by previously questioning Trenchery on cross examination. 4 Mo. Rep. 256. Roscoe on Ev., 140 — 1, &c. Greenleaf’s Ev., 514, §462. 1 Stark Ev., 182 — 3—4. 1st Phillip’s Ev., 293 — 4. 7 Mo. Rep., 120. Abell et. al. vs. Shields et. al, . These authorities show that a witness cannot be proved to have made contradictory statements, unless a foundation be laid by ffrst asking him in relation thereto. 3rd. Because no set off was pleaded, nor any notice filed of one, so that all evidence tending to prove set off was irrelevant, and this evidence was admissible on no other ground than to impeach Trenchery, or to establish a set oil'. Rev. Code of 1835, p. 579, §1,2 and 3. 3. The Court caonot taire notice of this last point, as the record does not show when this bill of exceptions was filed, and it states that the defendant below “excepts ” to the decision of the Court, — excepting then when it was filed, is not the exception contemplated by the Act of Assembly, but, excepting at the time the decision was made. And the burden is on the party complaining, to show that error was committed against him. 8 Mo. Rep., 136 — 224 and 234. 9 Mo. Rep., 797, Turner vs. Belden.