Plumb v. Curtis

33 A. 998, 66 Conn. 154, 1895 Conn. LEXIS 50

• Court: Supreme Court of Connecticut
• Decided: April 5, 1895
• Status: Published

Opinion

Baldwin, J.

There was no error in permitting the plaintiff to put his shop-books in evidence, for the purpose of proving not only that the goods therein charged to the defendant were sold and delivered, but that they were sold to the defendant. General Statutes, § 1041, provides that “in all actions for a book debt, the entries of the parties in their respective books shall be admissible in evidence.” They are admissible as tending to show the truth of the statements entered. Entries of sales to the defendant tended to prove fcliat such sales had been made to him. Smith v. Law, 47 Conn., 431. The statute, in its original form, was applicable only to an action peculiar to the jurisprudence of Connecticut, that of debt on booh. -Statutes, Ed. 1821, 93. In such a proceeding, the party’s boohs were deemed the principal and most satisfactory evidence, his own testimony being received merely as suppletory. Swift’s Evidence, 81; Terrill v. Beecher, 9 Conn., 344; Butler v. Cornwall Iron Co., 22 id., 335, 360. The Practice Act (§ 31) made them admissible in all actions for the recovery of a booh debt. It is a legitimate exercise of legislative power to give greater effect to any particular hind of evidence than it possessed at common law. State v. Cunningham, 25 Conn., 195, 203.

The entries of the sales charged in 1890, and the testimony with respect to Simeon Plumb's statements, when he gave the first order, that he was acting for the defendant, and desired the charges made to him, and a pass-booh hept for him, and of the defendant’s promises made in 1890 to pay for the goods then charged, and his request that the pass-booh might be left with him for examination, were properly received, notwithstanding the fact — that such payment was admitted by the pleadings. They were evidence of the manner in which the dealings between the parties commenced, and that the defendant recognized the authority of Simeon Plumb, at one time, to act as his agent in ordering goods of the plaintiff. The plaintiff’s claim was that such an agency existed in 1890, and continued unchanged till June, 1891. The evidence in question was relevant, not because it supported the plaintiff’s allegations as to an indebtedness for goods sold in 1890, since his reply admitted that no such indebtedness existed; but because it tended to support a recovery for the later charges, by showing the circumstances under which the goods were sold, and the appearance of authority which the defendant had given to Simeon Plumb to buy them on his behalf.

The court was fully justified in admitting proof of the declarations of Simeon Plumb at the time of the first purchases, though made in the defendant’s absence, as to his right to act for the defendant, in view of the fact that the defendant recognized the agency by calling for the passbook and paying for the goods so ordered. The jury might fairly infer from his conduct that he had authorized Simeon Plumb to make the declarations in question, for they were truly descriptive of the nature of his agency, as admitted by the defendant. As to how far, when received, they might be considered by the jury as proof of a larger agency than that which the defendant admitted, was another question, which was not brought up by an objection which related only to their admissibility.

The defendant contends further that as these declarations could only be important as tending to show sales to a principal through an agent, neither they nor any of the evidence relating to the agency of Simeon Plumb were admissible ■under the complaint, which was for goods sold to the defendant, and made no mention of the intervention of any agent in the transaction.

The rules under the Practice Act (Rule II., § 1, Practice Book, p. 12) allow the common counts to be “used for the commencement of an action, when any of these counts is an appropriate general statement of the cause of action,” but provide that the defendant shall not be required to plead until the plaintiff files “ a proper bill of particulars, or such further statement by way either of a substituted complaint, or of amendment, as may be necessary to show his cause of action as fully as is required in other cases; and such statement, where the demand is founded on an express contract, whether executory or executed, shall set forth the terms of the contract ”; and that “ where a bill of particulars only is filed, all the counts not applicable thereto shall be struck out by amendment.”

The bill of particulars filed in the present case was applicable, so far as appeared upon its face, either to the third, fourth, sixth, or ninth of the common counts (Practice Book, p. 60, Form 85). The rule was not complied with by striking out the other counts by amendment, but no objection was taken by the defendant on that account.

Under the ninth count, which was upon an account stated, it was unnecessary for plaintiff to allege the circumstances under which the indebtedness was contracted. Whether it was through the intervention of an agent or not was immaterial, so long as the account as rendered was accepted as correct by the defendant.

As respects the other counts, it should and, had the defendant demanded it, no doubt would have been specifically alleged that the indebtedness was contracted by Simeon Plumb, as agent for the defendant. Practice Book, p. 14, Rule III., § 1. No objection, however, was taken on this ground to the admission of any of the evidence as to the existence of such an agency. The general objection to the admission of Simeon Plumb’s declarations as to the extent of his authority, made in the absence of the defendant, was evidently based on the ground that it was hearsay; and it is so treated in the reasons of appeal. It was not such as to direct the attention of the trial court to any question of variance, and that question, therefore, cannot now be raised upon it, here. Rule XVII., § 1; 58 Conn., 584.

At the close of the testimony the defendant asked that the jury might be instructed that there could be no recovery, under the pleadings, for any goods sold in 1891 on the order of Simeon Plumb, acting as or being his agent. Such an instruction was properly refused. The evidence of agency having been received without any objection on the score of ■ variance, it was too late to ask the court, in its charge, to withdraw it from the consideration of the jury. At common law, a contract made by an agent could be declared on as if made directly by the principal. The Practice Act laid down a new rule ; but it was one purely of form. If the bill of particulars did not give the defendant such information as lie deemed necessary of the nature of the claim in suit, it was his duty to move to have it made more specific. His omission to do this was a waiver of the informality. Vila v. Weston, 33 Conn., 42, 48; Nothe v. Nomer, 54 id., 326; Santo v. Maynard, 57 id., 157.

The plaintiff was allowed, against the defendant’s objection, to testify that Simeon Plumb was a man of no property, so far as lie knew. It was not disputed that all the goods charged to the defendant had been ordered by Simeon Plumb, and sold on credit. The plaintiff claimed that he had extended this credit to the defendant, and was justified by the circumstances in so doing. The defendant denied that Simeon Plumb had any authority to buy on his credit the goods charged in 1891; and the main controversy was as to this point.

Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted not because it is shown to be competent, but because it is not shown to be incompetent. Uo precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teachings of reason and judicial experience. Thayer’s Cases on Evidence, 2, 3. “ If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury.” Insurance Company v. Weide, 11 Wall., 438, 440. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to «practical rather than theoretical considerations. The guiding principle is well stated in Stephen’s Digest of the Law of Evidence (Chap. 1, p. 36), in these words : “ The word ‘ relevant ’ means that any two facts to which it is applied are so related to each other, that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”

The jury, in the case at bar, were to determine whether it was probable that the plaintiff, after charging all the materials furnished on the order of Simeon Plumb, for the construction of three houses in Bridgeport, to the defendant as the principal for whom Plumb acted, and for whom it was not denied that he had authority to act, proceeded to furnish like materials for the construction of five other houses in Bridgeport on the order of Plumb, and to charge them to the defendant, when he really gave credit to Plumb and dealt with him as the only party to the transaction. According to the common course of human conduct, a merchant is not likely to continue for several months to make almost daily sales on credit, of goods worth in the aggregate several hundred dollars, to a man who, so far as he knows, is destitute of any means to pay for them. Inglis v. Usherwood, 1 East, 515, 524; O'Brien v. Norris, 16 Md., 122, 7 Am. Dec., 284. If he has been selling to him the same line of goods previously, as an agent for a responsible principal, and claims that the sales in question were made in the same way, and under the same circumstances, any evidence which renders a change of credit improbable, is relevant to an inquiry as to whether such a change was made. We think the plaintiff’s testimony, taken in connection with the other evidence already in the case, fairly tended to throw light on the matter in controversy, and was properly received.

The court erred in sustaining the plaintiff’s objection to the introduction of the defendant’s ledger, on which there were credits to the plaintiff for the goods furnished in 1890, but none for those furnished in 1891. Under General Statutes, § 1041, entries in the books of each party relative to such a transaction, are equally admissible. The objection, however, was subsequently withdrawn, and the ledger put in evidence. It is apparent that no injury could have resulted to the defendant from its temporary exclusion, and this consequently furnishes no ground of appeal.

Several witnesses testified in behalf of the plaintiff to conversations with the defendant in which he promised to pay the charges which were the subject of the action, and they declared that they gave all that he said on these occasions, which they remembered. The defendant afterwards testified that what they had stated was untrue, and that he did not make any such promises. The same witnesses were recalled in rebuttal, and after giving certain evidence proper at that stage of the case, were asked if they wished to change their testimony in chief, in view of the denials which had been made. They did not profess that their remembrance had been refreshed in any way, siuce they had been on the stand before. The court admitted the inquiry, against the defendant’s objection, and this is set up as a reason of appeal.

The finding does not show what answers were elicited. They may have been a simple negative. They may have been such as to modify materially the testimony which the witnesses had previously given. They may have been such as to repeat and amplify it. A witness who desires an opportunity to correct a statement which he has made upon the stand, in view of contradictory testimony subsequently introduced, has a right to be heard for that purpose; but it should be sought at the earliest convenient time. It does not appear how long the denial by the defendant was made before the close of the evidence offered in his behalf. It may be that nothing intervened between that and the testimony in rebuttal. The law leaves the order of the admission of testimony to be regulated by the discretion of the trial court. For aught that appears, this discretion was wisely exercised in this instance; but whether wisely or not, there is nothing in the record to take the case out of the ordinary rule that in such matters the decision of the trial court is not the subject of review.

The defendant asked the court to charge the jury that unless Simeon Plumb was actually authorized by him to order materials for the five houses not erected on his land, there could be no recovery for their price, if the plaintiff supplied them without inquiry of him as to the extent of Simeon Plumb’s authority, but relied on the authority the latter had to order materials for the first three houses, or on what he declared his authority to be as respects the others.

This instruction was properly refused, since it failed to notice or explain the effect of a ratification by the defendant, or of an appearance of authority from him such as to raise an estoppel. The plaintiff claimed to recover on the ground both of an actual agency, and of acts, on the part of the defendant, which estopped him from denyingsuch an agency, and of a ratification ; and there was evidence in support of each of these claims, before the jury.

After explaining the claim of the defendant that the agency of Simeon Plumb was confined to the purchase of materials for the three houses first built, the court instructed the jury, that if such were its limits, then if the plaintiff dealt with Simeon Plumb without ascertaining the extent of his agency, he dealt with him at his peril; and that in determining whether Simeon Plumb was the defendant’s agent throughout the transaction, they were not to consider the acts of Plumb as tending to prove that agency; but that authorization or ratification by the defendant could be proved only by his own acts and conduct. Exception is taken to these instructions because they did not sufficiently specify what conduct or acts on the part of the defendant would warrant the jury in finding the issue against him. The court had previously called their attention to all the testimony as to the acts and conduct of the defendant, and told them that it tended to support the plaintiff’s claims; but that it was for them to say whether it proved them or not. There was no necessity for dissecting the plaintiff’s evidence, and apportioning each item to the particular claim to which it might seem to the court most applicable. The general principles of law which governed the case were clearly stated, and the jury would have been confused rather than enlightened by any attempt to marshal the testimony in formal divisions. The defendant argues that the jury should have been told that the evidence of the authority from him to Simeon Plumb to buy materials for the first three houses, could furnish no basis for an inference that the plaintiff had a right to believe the agency extended to the other five. But, as we have already said, in discussing the admissibility of Plumb’s declarations to the plaintiff when the first purchases were made, the manner in which the course of dealing between the plaintiff and Plumb began was one of the circumstances to be considered in determining what appearance of authority he had been given by the defendant. The question was not what inference it might warrant, standing alone, but what inference might be warranted by the whole mass of evidence, of which it formed an indistinguishable part.

It is also urged that the jury should have been told that no conduct, acts or words of the defendant, after all the materials had been furnished, could be sufficient to lead the jdaintiff to assume that the defendant was responsible, in such a way as to make him liable in this action. Such an instruction would have been misleading and improper. There was no claim that conduct or declarations after the goods were ■supplied could be the foundation of any estoppel; but it is obvious that they might amount to a ratification, and, if so, would tend directly to support a recovery.

The parties stipulated upon the trial that it should be taken as a fact that the last five houses were built under contracts between Simeon Plumb and the respective owners of the several lots on which they were erected, and that he received and receipted for their payments on these contracts until April, 1891, when he gave the defendant orders upon them to make all remaining payments to him. The defendant offered evidence tending to prove that Simeon Plumb asked him to advance the working capital for the construction of these five houses and divide the profits, which he declined to do; that he agreed to advance him, weekly, funds to pay the workmen, provided he would turn over to him the first payments on the contracts to such extent as might be necessary to reimburse him, with interest; that in April, 1891, becoming alarmed at the condition of their accounts, he got the orders above described, but did not assume the contracts; and that he never collected on the orders enough to pay him for his advances.

The defendant requested the court to instruct the jury that the plaintiff could have no greater rights of recovery by reason of the defendant’s having obtained these orders. This instruction was properly refused. The evidence in question might fairly be weighed by the jury in determining whether these five building contracts were really, and from the beginning, those of Simeon Plumb, as the defendant claimed, or those of the defendant, as the plaintiff claimed.

The court properly declined to instruct the jury that unless Simeon Plumb was in fact authorized by the defendant to order the materials furnished for the last five houses, any oral promise to pay for them would be a promise to pay the debt of another, and within the statute of frauds. This request necessarily assumed both that these materials were originally supplied on the credit of Simeon Plumb, and that he still continued to be a debtor for them. Dillaby v. Wilcox, 60 Conn., 71. But this was the very point in issue, and the evidence upon which the plaintiff relied to support his action tended to show not simply that the defendant had in fact authorized the purchases in his behalf, but that, whether this were so or not, he was estopped to deny the existence of such authority, and had also ratified the transaction.

The same claim is presented in a different form by the complaint that the jury were not instructed as requested, that no oral promise by the defendant to pay for materials for these five houses, which had been or were being ordered by Plumb without authority from him, would be such conduct, acts or words as would justify the plaintiff in assuming that the defendant was responsible for the materials so ordered. If while they were being ordered in his name, the defendant orally promised the plaintiff to pay for them, this would plainly be evidence tending to justify the plaintiff in assuming that the defendant was responsible as the real principal in the transaction.

The defendant requested the court to instruct the jury that if Simeon Plumb had in fact no authority to order the materials for these five houses, the plaintiff could not recover for anything furnished after notice of such want of authority, nor for anything furnished before the defendant knew that Simeon Plumb was buying, upon his credit, of the plaintiff for these houses. This instruction was properly refused, for it ignored the effect of a ratification, of which some evidence had been submitted. The defendant might have told the plaintiff that Plumb had in fact no authority to contract for him, and still have proceeded to ratify the purchases; nor does the validity of a ratification depend on the time when the party ratifying learned of the transaction which is ratified.

The defendant asked the court to instruct the jury that the plaintiff could not recover on any promises made by the defendant to pay for materials previously sold and delivered on the order of Simeon Plumb, for use in the last five houses. There was no error in refusing to comply with this request. The complaint is not founded on any special promise. It rests upon a liability for goods bargained, sold and delivered, and materials furnished, and upon an account stated. The real importance of the promises which the plaintiff claimed that the defendant had made, was in their bearing upon the questions of ratification, acceptance of the goods, assent to the prices charged, and admission of the correctness of the account as rendered. A recovery was sought not on the promises, but for the purchases, to establish a- liability for which the promises were proper evidence.

It is true that an express promise founded only on a past consideration, not moved by a previous request, will not support an action; but in the case at bar, not only is the action brought to recover for the consideration, but there was evidence, of which these promises formed a legitimate part, from which the jury had the right to infer a previous request, that is, a request by Simeon Plumb as the authorized agent of the defendant.

Exception is taken to a part of the charge in which the jury were told that their verdict should be for the plaintiff, if the defendant, by his acts and conduct, recognized the acts of Simeon Plumb as his own acts, although such recognition was after they were completed, and all the materials had been furnished and delivered. Upon this point, the plaintiff contends that a ratification, to support a recovery, unless brought in to make out an estoppel, must rest on a voluntary acceptance of benefits at a time when it is open to the party ratifying to accept or reject, or on some other legal consideration moving from the plaintiff. Such is not the law with respect to the ratification of an unauthorized act of one assuming to do it as agent for the party ratifying. Wilson v. Tumman, 6 Mann, and Gr., 236, 241. The action, in such a case, is founded on the original act, and the question of consideration can only be important with regard to that. It is otherwise where there is no claim of agency, but the ratification is of the act of a mere stranger, done on his own account and in his own name. Hamlin v. Sears, 82 N. Y., 327, 331.

Of the other errors assigned, none seem to us to have sufficient merit to require their discussion, except one based upon the form of the complaint. This is, in substance, that under the charge the jury were at liberty to return a verdict for the plaintiff on the ground of an estoppel, precluding the defendant from denying that Simeon Plumb made the purchases in question as ins agent, although the existence of such an estoppel had not been alleged.

The Practice Act allows acts and contracts to be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove. (Practice Book, p. 14, Rule III., § 1.) The plaintiff’s complaint alleges an indebtedness for goods sold. He was prepared to support it by evidence tending to show three things: that the goods were purchased for the defendant by an authorized agent; that thejr were purchased by one whom he had a right, from the defendant’s conduct, to regard as his authorized agent; and that the defendant had confirmed the purchasés by a subsequent ratification. It would not have been good pleading to set out the evidential facts, on which he relied to establish any of these positions. The legal effect of each was the same, in making the defendant a debtor to the plaintiff for the price of the goods.

At common law an estoppel in pais was never regarded as in itself a substantive ground of recovery, to be put forward in pleading as part of the plaintiff’s case. It was merely a mode of shutting off a defense. A plaintiff who sued upon a cause of action, the existence of Avhich the defendant was equitably estopped from denying, stated the facts necessary to constitute the cause of action in his complaint as if they existed, and if a denial were pleaded, did not reply specially, stating the matter of estoppel, but simply introduced it in evidence to support his original averments. Hawley v. Middlebrook, 28 Conn., 527, 536.

' It is unnecessary for us to determine what might have been the duty of the plaintiff, had he relied simply on a liability by estoppel, or simply on a liability by ratification. He did, in fact, claim an original liability, and in drafting his complaint might fairly regard the greater as including the less. Ho separate count, founded on the matter of estoppel, could have been added, for it would not have been for a separate and distinct cause of action, as distinguished from a separate and distinct claim for relief founded on the same transaction. (Practice Book, p. 12, Rule II., § 4.) Craft Refrigerating Co. v. Quinnipiac Brewing Co., 63 Conn., 551, 561.

The Practice Act was adopted to promote simplicity rather than complexity in pleading. As it allows special replications and rejoinders to be filed, there is not the same reason which exists in some of the other States, in which a different system of code pleading is found, for anticipating defenses in the complaint, as is done in the charging part of a bill in equity. In actions for goods sold, the common counts may be used whenever they' are “ an appropriate general statement ” of the cause of action. (Rule II., § 1, Practice Book, p. 12.)- They were such in the present case; and as the defendant did not move to have the statement made more specific, it is to be presumed, as has been already said, that it gave him all the information he deemed necessary for his protection.

There is no error in the judgment appealed from.

In this opinion the other judges concurred, except Andrews, C. J., who dissented as to the admissibility of the declarations of Simeon Plumb at the time of the first purchase.