DuBois v. Perkins

27 P. 1044, 21 Or. 189, 1891 Ore. LEXIS 28

Opinion

Strahan, C._ J.

Only a single question is presented on this appeal, and that is whether or not Smith’s evidence detailing the conversation of the porter and Kidder at the time the cigars were delivered was competent. Thé defendant was not present at the time of this conversation, and it is not shown that the porter was his agent. How this conversation could affect or bind him does not appear; in fact, its competency was not claimed on the argument here, only as it may be supposed to have been rendered competent by other evidence given upon the trial, but which is not in the bill of exceptions. It was accordingly argued that for the purpose of sustaining the judgment, we.must presume that such evidence was actually given upon the trial. But this is not the correct rule. While it is true that error will never be presumed, the converse of the proposition is equally true. When error does affirmatively appear it will not be presumed that it was rendered iiarmless or removed. If it were so the respondent must see to it that the matter which renders it harmless or removes it is made to affirmatively appear in the bill of exceptions. By this evidence the plaintiff sought to charge Perkins with knowledge of his rights in the cigars, for which purpose it was not competent.

Inasmuch as there must be a new trial, we think proper to suggest our views upon another phase of this case. Perkins’ contention is that he bought these cigars of Kidder, who billed them to him in his (Kidder’s) name, who delivered them at his place of business, and that before this action was brought he paid Kidder the full price agreed to be paid therefor without any knowledge of the interet of DuBois. We think under these circumstances, even though the cigars may have been the property of DuBois, Kidder had authority to collect and receive the money. (Keown v. Vogel, 25 Mo. App. 35; Pardridge v. Bailey, 20 Ill. App. 351; Ludwig v. Gillespie, 105 N. Y. 653; Rosser v. Darden, 82 Ga. 219; 14 Am. St. Rep. 152.)

The judgment appealed from must be reversed and the cause remanded for a new trial.