Smith Table Co. v. Madsen

84 P. 885, 30 Utah 297, 1906 Utah LEXIS 67

• Court: Utah Supreme Court
• Decided: February 21, 1906
• Docket: No. 1649
• Status: Published

Opinions

STR-AUP, J.

This is an action to recover a balance claimed to be due for goods sold and delivered by plaintiff to' the defendant. The goods were sold to him at Grand Rapids, Michigan, where plaintiff maintained a salesroom', and were shipped from Warren, Pennsylvania, where was its factory. The plaintiff contended that the goods were sold at a discount of fifteen per cent, if paid within twenty days from date of invoice, which was known in the trade as a “cash discount.” Defendant contended that he was to have a deduction of fifteen per cent, from the regular list or catalogue price, which was known in the trad.e as a “trade discount.” Under plaintiff’s contention the defendant had the benefit of the fifteen per cent, discount if the goods were paid for within the twenty days; under the defendant’s he was éntitled to the discount, no matter whether the goods were paid for within the twenty days or theréafter . Within ninety days from the date of the invoice the defendant paid for the goods at the agreed price, as claimed by him, but the payment not being made within the twenty days, the plaintiff declined to accept the amount as full payment, gave the defendant credit therefor on account, and sued him for the balance. The court found that the defendant in person purchased the goods at the salesroom of the plaintiff at Grand Rapids, Michigan, at a trade discount of fifteen percent. ;that the defendant visited the salesroom at said place, where the goods were offered for sale, and, in purchasing the goods there, dealt with the plaintiff’s general agent; and that the defendant had paid the plaintiff the price agreed upon. Judgment was rendered for the defendant. ' Plaintiff appeals, attacking the findings and claiming that plaintiff’s agent at Grand Bapids was a mere traveling salesman and had no authority to give the defendant the trade discount.

1. Question of practice. Because the assignment of errors was filed in this court, and because it was not filed in the court below, presented and settled in the bill of exceptions, a motion was made to have it stricken. The motion ought not to prevail. There was a statute (section 2, c. 62, p. 84, Laws 1899) requiring the petition in error to be attached to the transcript and filed in this court, but it was repealed by chapter 134, p. 186, Laws 103. Since then, and at the time of the taking of this appeal, there was no statute providing where or when the petition or assignment of errors should be made. The only rules of court relating to the question, and in force at the time of the appeal, are rules 6 and 10, which require the appellant to set forth in his abstract and brief the “particular errors upon which he relies for a reversal of the judgment.” If these shall be construed to embrace or to mean the assignment of errors, then it was properly made and filed in this court. But it may be said that the rules merely require a setting forth of points to better understand and apply the discussion, and presupposes an assignment, which is wholly apart from the requirement of the rule. In other words, the assignment of errors, being in the nature of a petition or pleading, it is not sufficient to merely set forth points relied upon in-the brief. (Doe v. Waterloo Min. Co., 70 Fed. 455, 17 C. C. A. 190.) In the absence of a statute or rule of court prescribing the time and place of making the assignment, we think the proper place of filing it is with this court. The object of an assignment of errors is to apprise the appellate court of the specific questions presented for its consideration, and to inform the opposite party of the points intended to be relied upon that he may thereafter be guided, in the preparation of his brief, and to limit discussion and consideration to those points. It is, in effect, appellant’s complaint in the appellate court and performs the same function as an initial pleading in the court below. It is the foundation upon which rests the right of the appellate court to review the errors imputed to the trial court. (2 Enc. Pl. & Pr. 921; 2 Cyc. 980; Rubey v. Hough, 161 Ind. 203, 67 N. E. 257; Ditch v. Sennott, 116 Ill. 288, 5 N. E. 395.)

At common law the assignment of errors did not constitute a part of the transcript, but was founded upon it, and was filed in the appellate court, at or subsequent to, the time of filing the transcript. (Hutton v. Reed, 25 Cal. 479.) Considering, therefore, the office of an assignment of errors, both reason and principle suggest that it be filed in the appellate court, in the absence of a statute or rule of court requiring it to be filed in the court below. It, therefore, is not necessary that it be contained in the bill of exceptions. (Reay v. Butler, 69 Cal. 572, 11 Pac. 463; Hagman v. Williams, 88 Cal. 146, 25 Pac. 1111; Shadburne v. Daly, 76 Cal. 355, 18 Pac. 403.) Reference has been made to section 3286, Revised Statutes 1898, but it is apparent on reading it that it applies alone to the preparation, settlement, and signing of a bill of exceptions, and has nothing whatever to do with an assignment of errors, nor does it, in any particular, relate thereto. Besides, this court has already held that “exceptions are by no means assignments of error.” and has indicated, as there is, a distinction between them. (Thompson v. Hays, 24 Utah 275, 67 Pac. 670.) In settling a bill of exceptions the trial court has nothing to do with “allowing” or “settling” an assignment of errors. It is not clothed with authority or discretion to allow certain assignments and refuse others. Nor are the assignments to be presented in the bill of exceptions, as is said, “for the consideration” of the trial court, nor for the purpose, as is suggested that it may then review and correct any error so assigned. A bill of exceptions is a statement in writing settled, signed, and certified to by a judge of what the rulings were, the objections made, and exceptions taken thereto, the facts in view of which the rulings were made, and the proceedings explaining them. It is the history of the case as tried. Its office is to bring into the record of a case those material matters occurring during the trial which otherwise would not appear. (1 Words & Phrases, 183, and cases.) These things are done to preserve and authenticate the record in order that the rulings may be presented to and reviewed by the appellate court and not to afford the trial court a«t the settlement of the bill an opportunity to review and correct his own rulings.

The assignment of errors is no part of the history of the case, but is founded upon it, in the nature of a complaint made to the appellate court for its consideration, and hence has no place in the bill of exceptions. The case of Bankhead v. R. R. Co., 2 Utah 507, is not here controlling nor applicable. The ruling in that case was made under the civil practice act of the then territory of Utah, essentially different from the present practice and Code relating to records on appeal, and to the settlement of a bill of exceptions. Furthermore, in that case, there were no assignments made in either court, nor was the statement on appeal served or settled as required by the practice act, and the court properly held there was nothing before it except as appeared upon the judgment roll. Here no question is raised as to the service, settlement, or authenticity of the bill of exceptions. It is a transcript of the reporter’s notes of all the evidence and proceedings, showing all the rulings of the trial court, the objections made and exceptions taken thereto-, and all are properly preserved and settled in the bill. No question is presented as to specifications of particulars wherein it is claimed the evidence is insufficient to support the findings as required by section 3284, Hevised Statutes 1898i, and as amended by section 1, c. 40, p. 33, Sess. Laws 1903, and none could properly be raised, for such specifications were made with great particularity. No complaint is made with respect to any of these matters. Furthermore, a specification of particulars as to the insufficiency of evidence to support the verdict or decision is not to be confounded with, nor treated as an assignment of, errors. The office performed by each is essentially different.

The only point to which the motion is directed, and that is ■urged by respondent, is that the petition or assignment of errors should have been filed in the court below and by it allowed and settled in the bill of exceptions, instead of attaching the petition or assignment to the transcript and filing it in this court. Since the repeal of the statute designating the time and place of making the assignment or petition, much confusion has prevailed as to where and when the assignment of errors should be made. It has been the general practice to make it as was done in this case. By some it has been made in the court below by having it inserted in the bill of exceptions; and by others, out of caution, it has been made both in this court and in the court below. When it has been made in the lower court motions have been made to have it stricken because not here made; when made here and not below, like motions have been made. This court has uniformly held that an alleged error will not be reviewed unless assigned. Because of the absence of a statute or a rule of court regulating it, our practice has been to consider the assignments if made in either court. Since this appeal was taken, and at the October term of this court, this question, however, was set at rest by the establishment of a rule (rule 26) requiring the assignments to be made and filed in this court within five days from the time of filing the transcript of the record on appeal. It may be said it is the better practice to require the assignment to' be filed below and embodied in the bill of exceptions to aid the trial court and opposing counsel in determining the amount and kind of evidence to be set forth in the bill. When the bill is presented showing the rulings, the objections made, and .exceptions taken thereto, it is sufficient notice that they may thereafter be assigned as error, and each party is afforded an opportunity to- have all the evidence deemed necessary to explain them embodied in the bill. Besides, the suggestion is of little force when, as under our practice, a complete transcript of the reporter’s notes of all the evidence and proceedings may be and generally is tendered and settled as and for tbe bill. Again, while we may mate rules of practice for this court not inconsistent with the statute nor the Constitution, our authority to make a rule for the district court directing what it shall embody in the bill of exceptions, and to place in the bill something not a part of the record nor history of the case, nor required by statute, may well be doubted. Further, in an appeal on the judgment roll without a bill of exceptions, no assignment could be made in such manner and hence it would be necessary to have one rule for such an appeal and another for a record having a bill of exceptions.

Some observations are made respecting the question as to whether the stenographer’s or reporter’s notes of the evidence may be stated in the bill, and as to its settlement by the court with such statement. It is claimed that the court should eliminate all redundant matter and embody only so much of the evidence as is necessary to explain the exceptions, and that the bill should be made as brief as possible. No such question of practice is raised, nor before us for consideration. It may, however, be observed that by the amendment of section 3284, Revised Statutes 1898, by section 1, c. 40, p. 33, Sess. Laws 1903, the Legislature expressly provided that the stenographer’s notes of the evidence may be stated in the bill. IJnder our practice no unnecessary expense or hardship is imposed by so doing, for the transcript on appeal is not required to be served or printed as is the case in some jurisdictions. Here, after the transcript on appeal is filed, the appellant is required to serve and file a printed abstract of the record wherein the points relied upon for a reversal shall be set forth, and so much of the record abstracted and printed as is deemed necessary to explain them'. If the respondent is not satisfied with such abstract he may print a further abstract, or amendments thereto.

2. On the merits. Plaintiff’s agent testified that the discount was a cash discount; defendant, a trade discount. On such conflicting evidence the findings of the trial court will not be disturbed. Nor is the fact of controlling force, that the plaintiff invoiced the goods to the defendant, “Terms fifteen per cent, off twenty days, net sixty days,” for defendant, when be saw tbe invoice, wrote to tbe plaintiff: “In looking over your invoice I notice tbat yon bave made tbe terms fifteen off for casb, net sixty days. Tbis was not tbe terms we bought tbe tables on. It should be less a trade discount of fifteen per cent., sixty days time. Please change your books to read accordingly,” and again, “Tbe discount referred to was not a casb discount but a trade discount.” Tbe defendant bad tbe right to insist upon tbe terms of bis contract as made by him.

Tbe claim made tbat tbe plaintiff’s agent bad no authority to allow a trade discount is untenable. While plaintiff’s manager testified that tbe agent was a traveling salesman and bad no authority to sell at a trade discount, still there is evidence in tbe record tending to show tbat be was something more than a mere traveling salesman. In view of tbe findings of tbe court, supported by sufficient evidence, it was as much within tbe apparent scope of tbe agent’s authority to give tbe defendant a trade discount as it was to give him a casb discount. Tbe case is controlled by Smith v. Droubay, 20 Utah 443, 58 Pac. 1112. Tbe following authorities also show tbat tbe acts done here, being within tbe apparent scope of tbe agent’s authority, are binding upon tbe plaintiff. (Peinhard on Agency, sec. 325; Banks Bros. v. Everest et al., 35 Nan. 687, 12 Pac. 141; Potter v. Springfield M. Co., 75 Miss. 532, 23 South. 259; Tiedeman, Sales, sec. 269; Mechem, Agency, sec. 705; 1 Mecbem, Sales, sec. 175; 1 Am. & Eng. Ene. L. 992.)

Tbe judgment of tbe court below is affirmed, with costs.