McPherson v. Pinch

Grant, C. J.

(after stating the facts). 1. Plaintiff offered the lease in evidence, except the agreement upon the back, to which defendants’ counsel objected. It was received under exception. The latter agreement was subsequently introduced. The alteration was a material one, and neither before the lease was offered in evidence, nor afterwards, was there any competent evidence to show that Mr. Beecher had authorized Mr. Pinch to change the lease. If the case rested upon this, the objection would be fatal, not only to the admission of the leáse in evidence, but to the right of recovery against Beecher. ' There was, however, evidence of ratification, so that the objection becomes a technical one, and relates only to the order of proof.

%. The court, in its instruction, left the question of authority to the jury. There was no evidence of original authority. Mr. Pinch, a witness for the defendants, testified that he had no such authority. On cross-examination he was asked if, at the time the change was made, he *39 did not state in the presence of certain persons that he had such authority from Beecher. This he denied. Plaintiff then introduced witnesses to impeach this statement. While this impeaching testimony would have been competent to discredit the witness, especially if there had been other testimony of authority, it could not be used by the jury to prove the fact of agency. It was no more competent for that purpose than it would have been if offered as independent testimony of the agent’s declaration. It is elementary that the declarations by an agent are incompetent for that purpose. The 'court should have so instructed the jury, and should also, as requested, have eliminated from their consideration the question of authority. It is true that there was no intention on the part of plaintiff and Pinch to release Beecher, but such was the legal effect, unless he ratified the change.

3. It is urged that there was no evidence of ratification. There was evidence that Beecher held himself out to the public, by bill heads, as a proprietor; that he saw the lease in its changed form a few days after it was executed, and made no objection; that plaintiff demanded the rental; and that he did not then deny his liabilty, but used language from which the jury would be justified in inferring that he considered himself bound by the lease, and obligated to pay. We think there was sufficient to justify the -submission of this question to the jury.

4. In view of a new trial, — although the point does not appear to be raised, — we notice one other error in the instruction of the court, to the effect that, if the jury found there was no joint liability, they must find a verdict of no cause of action. Pinch admitted his liability, and, under Circuit Court Rule No. 27(c), the jury should have been instructed to render a verdict against Pinch, if they found that Beecher was not liable.

Reversed, and new trial ordered.

The other Justices concurred.