Webster v. Clark

Eastman, J.

We cannot entertain any doubt of the competency of the evidence to show Neal to be the agent of the defendant. He occupied a store on which was the sign of “ John T. Neal, Agent.” On his cards and bills he was designated in the same way. To the witness, who inquired of him for whom he was agent, he made a reply which induced the witness to call upon Clark, and inquire of him if Neal was his. agent, and upon the inquiry being thus made, Clark frankly answered that he was. He, moreover, agreed that goods might be sent to Neal, as he had desired. It also appeared that Clark was frequently in and out of the store, engaged in conversation with Neal. This plain admission of the defendant, coupled with the other circumstances, was entirely competent to show the agency, and thus settle the first exception taken at the trial. Itis unnecessary to examine it further, as it appears to be yielded in the argument.

Neal’s agency being thus established, it follows that whatever he might do within the legitimate scope of that agency, would bind the defendant, as much so as if done by himself. Story on Agency § 126; Paley on Agency 200; 2 Kent’s Com. 620; Lobdell v. Baker, 1 Met. 202 ; Towle v. Leavitt, 3 Foster’s Rep. 374.

Before any goods were sent,-the defendant informed the plaintiff’s clerk that Neal was his agent, and that the plaintiffs might send goods to Neal. Neal, as the defendant’s agent, accordingly ordered several bills of goods, and after-wards, between the ordering of each bill, stated that he had received the goods, although he did not specify the quantity. These acts and admissions of Neal were those of Clark, and were competent to show that he had ordered goods of the plaintiffs, and had also received goods. The evidence was sufficient to charge the defendant for some goods; for at least a nominal sum, if no more.

*252 But it was excepted that the evidence introduced was incompetent to show a sale and delivery of the quantity of goods sued for. Can this exception be sustained ? The witness saw the several bills or parcels packed himself, and superintended the same. The first bill, after being packed and directed to Neal, was delivered to the truckman, to be carried to the depot; and the others were put up to be sent by express. Now although this evidence alone would not be competent to prove a delivery, for the goods were not thereby shown to be in the hands of a regular common carrier, yet when we add thereto that the defendant, by his agent, afterwards, in speaking of the goods, said that they were received, the whole evidence, taken together, as disclosed in the case, was entirely competent to show a sale and delivery.

It was not necessary for the plaintiffs to call Neal, to show what he had done in the matter, or what goods be had received, for the acts of Neal were those of Clark, and it was sufficient to prove them. If Clark wished to disprove the receipt of the goods, it was for himself to call Neal and show it. The plaintiffs were not obliged to make out their case in that way. The rule laid down in Eastman v. Moulton, 3 N. H. Rep. 156 , cited by the defendant’s counsel, does not apply to a case of this kind. In that case, it was held that where a party offers to a jury his books of accounts, supported by his suppletory oath, as evidence of the sale and delivery of goods, if it appear by his book or by his examination that the goods were delivered to a third person, who might be produced as a witness, the book is not competent evidence. We do not question the correctness of that decision. There the party endeavored to sustain his account by his own oath and book, a species of evidence that is not allowable, if it appears that there is any better in existence. It is only from the necessity of the case that the party who keeps his own books and makes his own entries is permitted to testify. But here, the plaintiffs were *253 not seeking to make out their case in that way. They were not relying either upon their books or upon their own oaths, but upon the testimony, of witnesses, who put up the goods as ordered, and upon the admissions of the defendant of their receipt. Their evidence was not, therefore, secondary, but was competent for the purposes for which it was introduced.

Neither was it necessary for the plaintiffs to call the entry elerk. He did not pack or deliver the goods, but simply made the entries as directed by the witness, another clerk, who was upon the stand. The knowledge of the entry clerk was not superior to that of the witness, and the testimony as to the goods that were packed was primary in its character. The witness selected the goods himself, called them off to the entry elerk, who made the entries, and the witness then took the book, passed the articles to the packer, checked them on the book as he passed them, and saw the packer put them up. Such evidence must certainly be equal in degree to that which could come from the entry clerk under such circumstances, and it was not necessary to call the entry elerk.

But the exception was specially taken to the introduction of the book containing the entries of the goods. Had the plaintiffs undertaken to make out their case by their books of account and suppletory oath, the book would clearly have been admissible, for it was not, as we have already seen, brought within the rule for the reception of books in such cases. But this book was not offered for any such purpose, but only as a memorandum of what took place at the time, in connexion with the testimony of the witness. And in that view it was correctly admitted. It comes within the principle of Haven v. Wendell, 11 N. H. Rep. 112 , and of Watson v. Walker, 3 Foster’s Rep. 471. The principle is this, that the memorandum of a transaction, reduced to writing at the time, or immediately after the occurrence of the events it recites, is admissible in evidence in connexion with *254 the testimony of the witness showing the transaction, if the witness will testify that he had no doubt that the facts stated in the memorandum were true, and that he should have sworn to them from recollection a short time afterwardsThese entries, although not made by the witness’ own hand, may, nevertheless, be of equal verity as though made by himself, for they were made under his directions, according to his orders, and he at the same time examined them and knewthat they were correct. And we think they were admissible upon the principle of the cases stated, not as books of account, but as memoranda, of the transaction made at the time.

The exception that the witness could not testify that he put the bills into the post office, until it was shown that notice to produce the bills was served upon Clark, appears to us to have been taken under a misapprehension of the position of the case. There is no doubt of the rale of law that secondary evidence of the contents of a paper cannot be given until the non-production of the original is accounted for; and that if the paper be in the hands of the opposing party, notice to produce it must be given before its contents can be shown by parol. But the witness here did not state the contents of the bills, nor does it appear that he was offered for the purpose of stating them. The plaintiffs were not seeking toraake outthe.quantity of the goods in that way, but by the testimony of the witness showing that the goods had been ordered and received, and that a memorandum was made of them at the time. His testimony, that he made out bills and put them into the post office, was merely to show that he complied with the directions of Clark in that respect. It was not to show the items or contents of the bills, and it was, therefore, unnecessary to give any notice to produce them.

The only remaining exception, taken at the trial, relates to the form of the question that was permitted to be put to the witness. In the earlier practice in this State, it is be *255 lieved to have been very general to permit questions to be put in the alternative, even when it was quite apparent that the answer was suggested by the question. And this practice, although not so general as formerly, has continued, to a considerable extent, to the present time. It has, however, been regarded as under the control of the court, at the trial, and has been treated as one of those matters which may properly enough be determined at the time.

Where questions are long, and embrace matter which, it is apparent, may lead the witness to an answer favorable to the questioning party, it ought not to be permitted, unless the court, in its discretion at the trial, is of opinion that the testimony cannot otherwise be fairly obtained. Some witnesses, who are strictly honest and truthful, may yet be so obtuse or embarrassed as to be unable to tell what they know, without having their attention particularly called to the matter by various questions, and of this the court, at the trial, must judge. The question put, in this case, was not of that character which has heretofore been regarded as particularly exceptionable in our practice, and the verdict cannot be disturbed on that account. Still, we think the better practice to be, not to permit questions to be put in the alternative, unless it is quite apparent that the truth cannot be otherwise obtained from the witness. Questions thus put too often, suggest to the witness indirectly, if not directly, the answer desired, and are open to the general objection of being leading questions.

Judgment on the verdict.