Gibson v. Zeibig

24 Mo. App. 65, 1887 Mo. App. LEXIS 149

• Court: Missouri Court of Appeals
• Decided: January 4, 1887
• Status: Published

Opinions

Thompson, J.,

delivered the opinion of the court.

This was an action upon a merchant’s account. The answer is a plea of payment. The evidence showed payment to one Fleischer, who was the agent of the plaintiffs at St. Louis to sell their goods by sample, and who sold these particular goods to the defendant, after-wards collected the price agreed tobe paid for them, less the discount, gave to the defendant a receipt in full, signed by himself as the plaintiff’s agent, and then pocketed the money and absconded. The only question in dispute was whether Fleischer had authority from the plaintiffs to collect this bill.

I. Against the objection of the plaintiffs, the defendant was permitted to introduce the testimony of one Haller, another merchant of St. Louis, who had been a customer of the plaintiffs, to the effect that Haller had, prior to the date of the transaction in controversy, paid several bills to the plaintiffs through Fleischer, as their agent, to which mode of payment the plaintiffs had made no objection. In this there was no error. Agency and the scope of an agent’s authority are facts, to be proved like other facts. They may be proved either by showing the terms of a contract between the alleged principal and agent, or they may be proved by the transactions which have taken place between the principal and the agent, showing what the understanding between them was as to the scope of the agent’s authority. Evidence of a course pf -dealing by an agent, sanctioned . by Ms principal, is one of the recognized modes of proving the extent of the agency; and such evidence is admissible, whether the party introducing it knew, at the" time of the transaction in controversy, that the dealings had taken place or not. Greeley-Burnham Grocer Co. v. Capen, 23 Mo. App. 301; Wheeler v. Metropolitan Co., 23 Mo. App. 190; Brooks v. Jameson, 55 Mo. 505, 512; Edwards v. Thomas, 66 Mo. 468, 482; Franklin v. Globe, etc., Co., 52 Mo. 461.

II. The court refused all the instructions, tendered by both parties, and instructed the jury of its own motion. These- instructions submitted the case to the jury .fairly and clearly upon the applicatory principles of law, and furnished no ground of exception.

III. The bill of exceptions recites that the .counsel for the defendant, in his address to the jury, after the instructions had been given, used language about .as follows: “ ‘ I take it, gentlemen, that ail this matter amounts to is a little difference between St. Louis and Chicago ; and I think you will decide (or find) that in .this case (or this time), we of St. Louis rather got the best of Chicago.’ To which statement to the jury the plaintiffs then and there objected, which objection the court overruled, to which ruling of the court the plaintiffs’ counsel then and there, at the time, duly excepted.”

We are surprised that the court should have overruled this objection, and should not have taken occasion to rebuke the use of such, language in the presence of the jury. It is a notorious fact, and one of which the court might, for the purposes of this objection, have taken notice, that there has long been a commercial rivalry between the cities of St. Louis and Chicago. The plaintiffs were merchants doing business in Chicago, and the defendant was a merchant doing business in St. Louis. A rivalry of this kind is liable to infect the inhabitants of either of the rival cities with prejudice against the other. In view of this fact, an appeal of this kind to local prejudice and local pride should not have been made. It was a matter wholly extrinsic to the evidence and to the merits of the case. The court should have checked counsel of its own motion and instructed the jury to disregard such considerations. This was the Least that the plaintiff was entitled to under the circumstances. But when the plaintiff’s counsel objected to this line of argument, and the court overruled the objection in the presence of the jury, the effect of the ruling must have been to impress the jury that this line of argument met with the deliberate approval of the court.

We have not been disposed to countenance captious and strained objections of this kind. We have not regarded it as ground for reversing a judgment that counsel for the successful party have indulged in extravagant flights of oratory, or have drawn inferences from the testimony which might be deemed unwarranted and unfair. We have regarded it as important and counsel should not feel themselves trammeled in the forcible and zealous advocacy of their client’s cause, by being beset at every step of their argument by the fear that they might Let slip something which, in case of their client ’ s success, would entitle the other party to a new trial. But there is a clear line of demarkation between matters which pertain to the case on trial and matters which are wholly extrinsic; and where counsel have attempted to make a case in their argument to the jury which the law would not allow them to make in their tenders of evidence, our courts have always held that such conduct, if objected to at the time and allowed to pass unrebuked, is ground for a new trial. Miller v. Dunlap, 22 Mo. App. 97; Marble v. Walters, 19 Mo. App. 134; Roeder v. Studt, 12 Mo. App. 566; Brown v. Railroad, 66 Mo. 588, 590; The State v. Lee, 66 Mo. 165, 168; The State v. Barham, 82 Mo. 67. Because the counsel for the defendant saw fit to indulge in these unwarranted remarks, and because the court, notwithstanding the objection of the plaintiff’s counsel, failed to rebuke this impropriety in the presence of the jury, but overruled the plaintiff’s objection thereto, we reverse the judgment and remand the cause, and for no other reason.

.Reversed and remanded.

All the judges concur.