Taplin & Rowell v. Harris

90 A. 956, 88 Vt. 15, 1914 Vt. LEXIS 186

• Court: Supreme Court of Vermont
• Decided: May 9, 1914
• Status: Published

Opinions

Munson, J.

The plaintiffs were dealers in lumber, and had on hand in 1904, in 'Wheelock and Burke, a quantity of lumber known as box boards. Iphus and Lucius Gordon were at that time engaged in the manufacture of lumber at Lyndonville under the name of Gordon Brothers. The defendant is an uncle of the Gordons, and was then cashier of the Lyndonville National Bank. The suit is brought to recover for box boards delivered at the mill of Gordon Brothers, which the plaintiffs claim were bought by Lucius Gordon, acting as defendant’s agent.

The delivery of the lumber commenced in June, 1904, and continued until February, 1905. The defendant was absent on a European trip from August twentieth until Thanksgiving day. The plaintiffs had no talk with him about the lumber until after his return. On the second day of December plaintiff Taplin saw him in the presence of Lucius Gordon, and after some conversation the defendant wrote, signed and delivered to Taplin a writing addressed to the plaintiff firm, which reads as follows: “My understanding of the agreement between you and the Gordon Bros, is that I shall stand bound to you to pay for the box boards, out of the proceeds of the boxes, when finished, at the rate of $10. per thousand delivered at their factory in Lyndon-ville, as counted in. ’ ’ This is followed by the word ‘‘accepted, ’ ’ with the signatures of Gordon Brothers and Taplin & Rowell. According to the plaintiff’s book, the admissibility of which is questioned,' nearly two-thirds of the lumber sued for had been delivered when this writing was given. Defendant’s counsel construe the writing as an undertaking regarding future deliveries, and the defendant so characterized it in his testimony. Plaintiffs’ counsel treat it as referring to the agreement under which the previous deliveries had been made. The court left it for the jury to say what agreement was intended, and to this the defendant excepted.

It is apparent that the writing is not one that could be construed by the court and he made conclusive of the defendant’s liability. Its language is capable of different constructions. It may refer to the arrangement under which the preceding deliveries were made, and amount to an acknowledgement of previous liability. It may refer to an arrangement which the defendant supposed was then being made. Its construction must depend in part upon the circumstances surrounding its execution and the knowledge which the parties had of them.

The defendant excepted to certain instructions of the court regarding the effect to be given to the writing, — the consideration of which will be deferred until the case has been more fully presented in connection with other questions. The plaintiffs recovered the amount of their claim, and the defendant moved that the verdict be set aside for want of evidence to sustain it. It is now urged in support of this claim that there was no evidence tending to show an undertaking on the part of the defendant to pay the plaintiffs more than the money which came into his hands, and no evidence tending to charge him with any liability on account of the lumber which came from Burke. The first of these objections will be considered now.

In making out their case the plaintiffs called Lucius Gordon and the defendant. The defendant testified that he had no talk with Gordon about this matter until after his return from Europe. Gordon testified that before the trade for the lumber was closed he had a talk with the defendant about it, but plaintiffs failed to get from him any positive evidence of an •authority to purchase on defendant’s credit, and the only statement of that character came from plaintiff Taplin’s testimony as to what Gordon communicated to him. With reference to this situation it is suggested in plaintiff’s brief that there is evidence that Gordon obtained some authority from the defendant and told Taplin what that authority was, and that the testimony of Taplin, received without objection, may be used to show the scope of that authority. It is certain that a party cannot, against his objection, be charged with an agency on the statements of the supposed agent made out of court. Prouty v. Nichols, 82 Vt. 181, 72 Atl. 938, 137 Am. St. Rep. 996. Whether the plaintiffs are entitled to any benefit from these statements because of the defendant’s failure to object to them will appear later.

It is clear, that the testimony of Gordon tends to show that some arrangement to secure plaintiffs for the price of the lumber was entered into between himself and the defendant and communicated to Taplin. The claim of the plaintiffs is that Harris became unconditionally holden for the price of the lumber, and that the lumber was to be charged to him when delivered, and be paid for when the shooks were sold. We think it cannot be said that there is anything in the testimony of Gordon as to what passed between him and Harris that fairly tends to sustain this claim. ■ Gordon’s testimony regarding the negotiations tends to show that the understanding was that the plaintiffs should be paid for the lumber from the proceeds of the box shooks as sold; that the avails of the sales were to pass through Harris’ hands at the bank, and that he was to see to it that the part belonging to the plaintiffs was sent to them. But Gordon’s testimony regarding the conduct of the business shows that shooks from thq plaintiffs’ lumber and from other lumber were shipped in the same car; that the cheeks coming from the plaintiffs’ lumber were deposited in Gordon Brothers’ account the same as othei* checks; that there was no way Harris could tell what checks came from the plaintiffs’ lumber except by notice from Gordon Brothers, and that no such notice was ever given or asked for. On the other hand it is to be noticed that the writing which the plaintiffs accepted, and claim to relate to .the lumber previously delivered, contains nothing inconsistent with Gordon’s version of the understanding.

.Other features of the evidence should be referred to, as bearing upon the positions taken by the parties in' their testimony, and upon their understanding of the situation at the time the writing was executed. Gordon testified that this lumber was manufactured' as it came in, in a very short time, and that Harris knew it was being manufactured into shooks. Harris testified that he did not know that Gordon Brothers were in the box business until after his return from Europe. Taplin testified that he was probably in Lyndonville every month that summer; that it was his wish to see Harris, but that he made no special effort to do so'; that the day the writing was signed he found Gordon in the yard at the mill, hut did not notice about the lumber; that he had talked with Gordon about whether they had got any of the lumber manufactured, and that he did not think any of it was manufactured until fall. He had received no pay on the lumber at the time the writing was given. He afterwards received from Harris two payments as his share of the proceeds of two subsequent shipments.

Taplin testified in direct-examination, in substance, that on the occasion when the writing was given he told Harris that they had been delivering box boards at Gordon Brothers’ mill and charging them to him, and that before they made any arrangement Gordon told them that he, Harris, was to pay for them,; that Harris replied, “all right; what kind of a writing do you want?” that witness said he. thought Harris had better write something for him to take; as something might happen to him; and that Harris sat right down and wrote the paper.- In cross-examination Taplin said the writing did not exactly embody the agreement he made with Gordon — that- it varied from it regarding the matter of payment; that Harris wrote it to suit himself and that witness didn’t pay any particular attention as to how he was going to pay, except that he was going to pay as fast as he got it but of the box boards;' that he took the writing because he thought it was better to have something from him— took it to show that he was consenting to its being charged to him.. It is not necessary to give special consideration to Taplin’s version of this interview as evidence bearing upon the nature of the defendant’s undertaking, in view of the disposition to be made of another question respecting his testimony.

The question presentéd is regarding the use of Taplin’s testimony as to what Gordon told him that Harris had agreed to. It is said in Boville v. Dalton Paper Mills, 86 Vt. 305, 85 Atl. 623, with reference to an exception to the charge, that the evidence referred to in the charge came into the case without objection, and that it was not error for the court to make use of it. The situation here is this. The testimony came in without objection. The question of agency was submitted upon the whole evidence. No exception was taken to the charge in this respect. No distinction is made in the defendant’s brief between the testimony of Taplin and that of Gordon. So the only question is' whether Taplin’s testimony is evidence tending to establish the agency. The law does not recognize it as legitimate evidence, but it may nevertheless have a probative effect. It was said by Judge Peck in Cavendish v. Troy, 41 Vt. 99, that where evidence has a moral tendency to induce belief of the truth of the disputed fact, although the inference from it is too remote to constitute legal evidence, the right to object to it is waived by suffering it to come in without objection. See also Parker v. Boston & Maine R. R., 84 Vt. 329, 347, 79 Atl. 865. Mr. Wigmotfe, 'in §10 'of his work, treats the proof of hearsay statements as evidence having probative value, the admission of which is forbidden by a specific rule'; and refers in §11 to the hearsay rule as one laying down auxiliary tests and safeguards over and above the required minimum probative value. And it has been adjudged that hearsay evidence admitted without objection is to be considered and given its natural probative effect as. if it were in law admissible. Diaz v. United States, 223 U. S. 442, 56 L. ed. 500, 32 Sup. Ct. 250. Treating Taplin’s account of Gordon’s statements as of probative effect, there was clearly evidence from which the jury could find an unconditional purchase of lumber by Harris through the agency of Gordon, to be paid for as the manufactured product was sold.

The case as now presented is to be considered with reference to the court’s instructions regarding the effect of the writing. Gordon’s testimony was evidence tending to show that Harris knew, at the time he gave the writing, that Gordon Brothers had purchased lumber of the plaintiffs, and that some of it had been delivered and manufactured. With these facts found, it is clear that the writing itself might be considered an acknowledgement of a previous understanding regarding the manner of payment. But according to Taplin the receipt of the avails merely determined the pay-day, while according to Gordon the receipt of the avails raised the obligation to pay; and this feature of the evidence gives rise to a question regarding the effect to be given the writing as to which we are not agreed.

The court charged in substance that if the sale was to Harris and on his credit, and. Gordon had authority to buy for Harris and pledge his credit; or, if Gordon did not have the authority at the time, if Harris .ratified the contract after it came to his knowledge; then the plaintiffs could recover. The correctness of this instruction is apparent from what has already' been said. No issue was framed, — and as the case stood none could properly have been submitted, — on the basis of Gordon’s testimony that there was a sale on the strength of an agreement by Harris that he would see that the plaintiffs had their pay out of the proceeds of the shoóks when sold.

The court charged further that if the writing of December second referred to the agreement entered into before the lumber was delivered it was a ratification of the acts of Lucius Gordon in the purchase of this lumber according to the limitations in that letter”; and this was excepted to. The instruction was erroneous. If the agreement was that testified to by Taplin and claimed by the plaintiffs on the- trial, the writing was not a ratification of it.' The terms of the writing are not coextensive with the terms of the contract as testified to by Taplin, and there could be no ratification with a modification.

. In a supplemental charge the court referred to its inadvertence in saying that the writing would be a ratification .instead of evidence tending to show it, and changed the instruction by saying that the writing was evidence tending to show that the defendant ratified the contract made by Gordon, if it was found to refer to that contract; and that in connection with the facts which the other evidence of the plaintiffs tended to show, if those facts were found, it would be a ratification. An exception was taken to this further instruction. A majority of the court think -the instruction was justified by the evidence. Taplin ’s testimony tended to show that his firm sold the lumber to the defendant through Gordon as his agent, and that the defendant 'ratified the contract at the time the writing was drawn by responding “all right” to what Taplin said, regarding it. The contract as testified to by Taplin included the provision that payment was to be made as the shooks were sold, and defendant’s writing says that he is to pay plaintiffs for the box boards out of the proceeds of the boxes. In view of these facts it is considered that the writing tends to show a ratification of the contract claimed by the plaintiffs, although it does not cover all its terms; and that this, in connection with such other facts as might be found from the evidence, would justify a finding of ratification. The exception taken did not specify, as a ground of objection, the generality of the reference to the facts which, in connection with the writing, would constitute a ratification.

It may be noticed here that in the opening of the plaintiff’s brief the agreement is treated as a purchase on the credit of the defendant, in pursuance of which the lumber was charged directly to the defendant; and that after discussing the language of the writing of December second, it is said that when the defendant agreed to pay for the lumber out of the proceeds of the boxes “it became his duty to see that the proceeds for-which he was holden were turned into the proper channel.” If the plaintiffs were claiming to recover on the latter ground, it would be necessary to consider whether a recovery could be had under the common counts.

Further questions are presented as to the' 28,200 feet which came from Burke. None of this was made into box shooks. About 4,000 feet of it was used by Gordon Bros, on the walN of the mill building... There was evidence tending- to show that' all the'rest of it was in the yard when the defendant took possession of all the property under a bill of sale. The defendant- claims that there was no evidence tending to show that this lumber was covered by his undertaking. "When testifying for the plaintiff, Gordon did not separate or designate the lumber, by mention of any locality. When inquired of by defendant regarding the lumber that came from Burke, and when recalled by the plaintiff and inquired of upon the same subject, he did not say when the talk which led to its being delivered was had. Taplin -testified to the negotiations as having relation to lumber in Wheelock. but said in connection with this that Gordon said that Harris was going to pay for all the box board lumber he had. Taplin also testified that the Burke lumber was a part of the box boards sold to Gordon, and when asked in cross-examination what he said to -Gordon about this lumber, replied that he told him they had some up there that they wanted to ship with the order “that had been placed.” So the only statement covering the time places the sale of the Burke lumber subsequent to the arrangement based on the authority obtained by Gordon and communicated to Taplin. Taplin testified that he never had any talk with Harris about the lumber that came from Burke; and there is no evidence of any conference between Gordon and Harris about authority to purchase after the one made known to Taplin at the time of the Wheelock purchase. So the only question is, whether Taplin’s testimony that Gordon told him that Harris was going to pay for all the box board lumber he had, was evidence tending to show an authorization not limited to what was then the subject of the negotiation. A majority of the court think that the evidence had that tendency.

It is not necessary to inquire whether the instruction first given on this subject was correct, for the only exception applicable to the instruction as given was, not to the correctness of the submission, but to the fact that the question was submitted.

In a supplemental charge the court gave further instructions on the subject; saying among other things that if this lumber was sold to the defendant and was kept and used up in the business without any new arrangement being made in respect to it, he would be bound to pay for it. The defendant excepted to the instruction that there could be a recovery for any lumber kept and used by the-defendant; saying there is no evidence tending to show that he kept and used any lumber. The testimony last above recited was evidence tending to show this.

The verdict was based upon the entries in the plaintiffs’ book, which was received under objection. The plaintiffs' kept no account of the lumber as it was loaded for delivery. The persons who drew the lumber for the plaintiffs had small account books of their own, generally called pass-books in the evidence, which they carried with them, and on which Gordon entered the amount of the lumber drawn as he counted it off. Plaintiffs’ Ex. 4 is the book onto which Mrs. Taplin, the plaintiffs’ bookkeeper, copied the entries made by Gordon as the passbooks were brought to her from time to time by the teamsters. She testifies that she copied them correctly, and that she kept no other account. The books generally, if not always, contained the personal accounts of their owners, and were taken away by them after the items were copied. Nothing further appears regarding them, except that the plaintiffs have made no effort to secure them. Gordon kept a book of his own on which he entered the items written in the pass-books, and he testified that he had searched for this book and could not find it.

We think the book was admissible in connection with'Mrs. Taplin’s testimony that-the items were correctly drawn off. It is true that she' knew nothing as to the correctness of the items copied. But these books were the record kept by the purchaser, of the lumber he received. Gordon was beeping the count of •the lumber for both parties; entering the items contemporaneously in the books of plaintiffs’ men and in his own book. The teamsters did not make the entries in their books or know that they were correct. The book introduced was in the nature of testimony to an admission. It is'true that the pass-books wér'e the admission itself, and that their production would test the accuracy of the transcription. But we think the admissibility of this proof of the admission ought not to be made to depend upon the production of books of this description, kept as these books were. If Mrs. Taplin had made her entries from contemporaneous telephonic communications from Gordon as 'agent, she could have produced her book and testified to the accuracy of the account, notwithstanding the want of a test. ' '

• The death of the defendant being suggested, jttdgment is affirmed as-of the date it was rendered by the county court.