Buchanan Elevator Co. v. Lees

• Decision Date: 09 May 1917
• Docket Number: 1915
• Court: North Dakota Supreme Court

163 N.W. 264

37 N.D. 27

BUCHANAN ELEVATOR COMPANY, a Corporation, v. JENNIE LEES and James Lees

No. 1915

Supreme Court of North Dakota

May 9, 1917

Appeal from the District Court of Stutsman County, Honorable J. A Coffey, Judge.

Affirmed.

Knauf & Knauf, for appellants.

Testimony which is mere conclusion of fact, irresponsive, hearsay remote, not within the res gestae, touching collateral issues or secondary, should not be received over objections. Martin v. Shannon, 92 Iowa 374, 60 N.W. 646; Rosencrance v. Johnson, 191 Pa. 520, 43 A. 360; Young v. Doherty, 183 Pa. 179, 38 A. 587; Bradley v Freed, Tenn. , 51 S.W. 124.

Conversations between two persons touching the interests of a third person (party to the action), who is not present, are not admissible. Mitcham v. Schuessler, 98 Ala. 635, 13 So. 618; Fox v. Windes, 127 Mo. 502, 48 Am. St. Rep 648, 30 S.W. 325; Evans v. Evans, 155 Pa. 572, 26 A. 755; McGregor v. Wait, 10 Gray, 72, 69 Am. Dec. 305; May v. Little, 25 N. C. (3 Ired. L.), 27, 38 Am. Dec. 707; Hussey v. Elrod, 2 Ala. 339, 36 Am. Dec. 420; Goodrich v. Tracy, 43 Vt. 314, 5 Am. Rep. 283; Butler v. Price, 115 Mass. 578; Martin v. Rutt, 127 Pa. 380, 17 A. 993; Benjamin v. Benjamin, 15 Conn. 347, 39 Am. Dec. 384; Games v. Stiles, 14 Pet. 322, 10 L.Ed. 476.

The fact that the gambling option grain orders were sent in by plaintiff or plaintiff's stationery, with full knowledge on the part of plaintiff's actual manager and official, proves that plaintiff must have known defendant's financial inability to buy or pay for the large amounts of grain on which he only bought options. Therefore, the question of how much money he had lost on such deals was competent. Lear v. McMillen, 17 Ohio St. 464; Wagner v. Hildebrand, 187 Pa. 136, 41 A. 34; Phelps v. Holderness, 56 Ark. 300, 19 S.W. 921; Jamieson v. Wallace, 167 Ill. 388, 59 Am. St. Rep. 302, 47 N.E. 765.

Plaintiff knew that defendant was gambling in options, and all its acts were done in the light of this knowledge. Dows v. Glaspel, 4 N.D. 261, 60 N.W. 60; Melchert v. American U. Teleg. Co. 3 McCrary, 521, 11 F. 193.

Such disguises the courts have always sought to pierce, and to ascertain the real intention of the parties. Whitesides v. Hunt, 97 Ind. 191, 49 Am. Rep. 441; Melchert v. American U. Teleg. Co. 3 McCrary, 521, 11 F. 193; Edwards v. Hoeffinghoff, 38 F. 639; Embrey v. Jemison, 131 U.S. 336, 344, 33 L.Ed. 172, 175, 9 S.Ct. 776; Irwin v. Williar, 110 U.S. 499, 28 L.Ed. 225, 4 S.Ct. 160; Mohr v. Miesen, 47 Minn. 228, 49 N.W. 862; Jamieson v. Wallace, 167 Ill. 388, 59 Am. St. Rep. 302, 47 N.E. 762; Colderwood v. McCrea, 11 Ill.App. 543; Carroll v. Holmes, 24 Ill.App. 458; Beveridge v. Hewitt, 8 Ill.App. 467; Beadles v. McElrath, 85 Ky. 230, 3 S.W. 152; Flagg v. Baldwin, 38 N.J.Eq. 219, 48 Am. Rep. 308; Kirkpatrick v. Bonsall, 72 Pa. 155; Waite v. Frank, 14 S.D. 626, 86 N.W. 645; Rogers v. Marriott, 59 Neb. 759, 82 N.W. 21; Sprague v. Warren, 26 Neb. 326, 3 L.R.A. 679, 41 N.W. 1115; North v. Phillips, 89 Pa. 250; Cobb v. Prell, 5 McCrary, 85, 15 F. 774; Re Green, 7 Biss. 344, Fed. Cas. No. 5,751; Crawford v. Spencer, 92 Mo. 498, 1 Am. St. Rep. 745, 4 S.W. 713; Lowry v. Dillman, 59 Wis. 199, 18 N.W. 4; Watte v. Wickersham, 27 Neb. 457, 43 N.W. 259; Williams v. Tiedemann, 6 Mo.App. 276; Hill v. Johnson, 38 Mo.App. 392.

It was clearly error for the court to permit plaintiff to show that none others had lost money through it by gambling in options. State v. Trott, 36 Mo.App. 29; Ah Kee v. State, Tex. Crim. Rep. , 34 S.W. 269; Goldstein v. State, Tex. Crim. Rep. , 35 S.W. 289; State v. Hildreth, 31 N. C. (9 Ired. L.) 440, 51 Am. Dec. 372; Com. v. Cooper, 5 Allen, 495, 81 Am. Dec. 762.

Where an agent knowingly participates in an illegal transaction, he cannot recover for his commissions, and the law will leave him without remedy in case of loss. Crawford v. Spencer, 92 Mo. 498, 1 Am. St. Rep. 745, 4 S.W. 713; Irwin v. Williar, 110 U.S. 499, 28 L.Ed. 225, 4 S.Ct. 160; Phelps v. Holderness, 56 Ark. 300, 19 S.W. 921; Embrey v. Jemison, 131 U.S. 336, 345, 33 L.Ed. 172, 175, 9 S.Ct. 776.

It is sufficient if defendant's purpose was to gamble, and the plaintiff knew this when it went upon the board of trade to make such large purchases and sale for defendant. Phelps v. Holderness, 56 Ark. 300, 19 S.W. 921; McCormick v. Nichols, 19 Ill.App. 337; Beveridge v. Hewitt, 8 Ill.App. 482; Miles v. Andrews, 40 Ill.App. 155; Coffman v. Young, 20 Ill.App. 82; Embrey v. Jemison, 131 U.S. 336, 33 L.Ed. 172, 9 S.Ct. 776; Dows v. Glaspel, 4 N.D. 257, 60 N.W. 60; Cassard v. Hinman, 6 Bosw. 8.

The jury had the right to look through and to examine into the books of account of these transactions, in order to enable them to better determine the intentions of the parties. Dows v. Glaspel, 4 N.D. 261, 60 N.W. 60; Whitesides v. Hunt, 97 Ind. 191, 49 Am. Rep. 441; Melchert v. American U. Teleg. Co. 3 McCrary, 521, 11 F. 193; Edwards v. Hoeffinghoff, 38 F. 639; Embrey v. Jemison, 131 U.S. 336, 344, 33 L.Ed. 172, 175, 9 S.Ct. 776; Irwin v. Williar, 110 U.S. 499, 28 L.Ed. 225, 4 S.Ct. 160; Mohr v. Miesen, 47 Minn. 228, 49 N.W. 864; Jamieson v. Wallace, 167 Ill. 388, 59 Am. St. Rep. 302, 47 N.E. 764; Kullman v. Simmens, 104 Cal. 595, 38 P. 362; Hill v. Johnson, 38 Mo.App. 383; Crawford v. Spencer, 92 Mo. 500, 1 Am. St. Rep. 745, 4 S.W. 713; Cobb v. Prell, 5 McCrary, 85, 15 F. 774; Carroll v. Holmes, 24 Ill.App. 458; Re Green, 7 Biss. 344, Fed. Cas. No. 5,751.

Thorp & Chase, for respondent.

"Conclusions of fact are mere inferences drawn from the subordinate or evidentiary facts." 2 Words & Phrases, 1387; Caywood v. Farrell, 175 Ill. 480, 51 N.E. 755.

"An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him." Comp. Laws 1913, § 6324.

"An agent has such authority as the principal actually or ostensibly confers upon him." Comp. Laws 1913, §§ 6336, 6338; 2 C. J. pp. 435-438, 574, § 32, and cases cited.

In establishing agency, proof of close relationship and dealings may be received with other evidence, and is entitled to consideration. 2 C. J. §§ 33, 36, 37, 70, 71, 213, 215, pp. 440, 441, 461-463, 574, 576; Reid v. Kellogg, 8 S.D. 596, 67 N.W. 687.

"Where an agency can be established by parol, the agent is a competent witness to prove it." 10 Enc. Ev. 14.

"When there is some other evidence of agency, then evidence of the acts and declarations of the alleged agent is admissible, the jury being the judges of its sufficiency." 10 Enc. Ev. pp. 19, 21, 23, 24, §§ 5, 6, cases cited under notes 56, 58; Nowell v. Chipman, 170 Mass. 340, 49 N.E. 631; Christ v. Garretson State Bank, 13 S.D. 23, 82 N.W. 89.

An offer of proof must be specific, and advise the court of what the facts are that the party intends to show. Austin v. Robertson, 25 Minn. 432; Wood v. Washington, 135 Wis. 299, 115 N.W. 810; Smith v. Gorham, 119 Ind. 436, 21 N.E. 1096; Goyette v. Keenan, 196 Mass. 416, 82 N.E. 427; Smart v. Kansas City, 208 Mo. 162, 14 L.R.A.(N.S.) 565, 105 S.W. 709; Reynolds v. Continental Ins. Co. 36 Mich. 144; Taylor v. Calvert, 138 Ind. 67, 37 N.E. 536; O'Sullivan v. Griffith, 153 Cal. 502, 95 P. 873; Grimestad v. Lofgren, 105 Minn. 286, 17 L.R.A.(N.S.) 990, 127 Am. St. Rep. 566, 117 N.W. 515; Knatvold v. Wilkinson, 83 Minn. 265, 86 N.W. 99; Borden v. Lynch, 34 Mont. 503, 87 P. 609; Lucy v. Wilkins, 33 Minn. 441, 23 N.W. 861; Wolford v. Farnham, 47 Minn. 95, 49 N.W. 528.

A cross-examination is proper when it pertains to what has already been offered, and seeks to explain or apply the testimony. State v. Kent, 5 N.D. 541, 35 L.R.A. 518, 67 N.W. 1052; Campau v. Dewey, 9 Mich. 381; Ah Doon v. Smith, 34 Ore. 89, 34 P. 1093; Sayres v. Allen, 25 Ore. 211, 35 P. 254; 3 Enc. Ev. 832; Abbott Civ. Jury Trials, pp. 220, 221; Hogan v. Klabo, 13 N.D. 319, 100 N.W. 847; 1 Thomp. Trials, 2d ed. § 408.

In order to constitute a grain purchase a gambling transaction, it must appear that both parties well understood that there were to be no deliveries made. Beidler & R. Lumber Co. v. Coe Commission Co. 13 N.D. 639, 102 N.W. 880.

"Preponderance of the evidence means greater weight, or evidence which is more credible than some other evidence, with which it is compared." Button v. Metcalf, 80 Wis. 193, 49 N.W. 809; 3 Words & Phrases, p. 2649.

A mere opinion or conclusion, as contradistinguished from a statement of fact, may not be proved under the rule relating to admissions and declarations. 1 R. C. L. p. 481, § 16; McCord v. Seattle Electric Co. 46 Wash. 145, 13 L.R.A.(N.S.) 349, 89 P. 491; Scott v. St. Louis, K. & N.W. R. Co. 112 Iowa 54, 83 N.W. 818, 8 Am. Neg. Rep. 391; Hammond, W. & E. C. Electric R. Co. v. Spyzchalski, 17 Ind.App. 7, 46 N.E. 47, 1 Am. Neg. Rep. 225; Saunders v. City & Suburban R. Co. 99 Tenn. 130, 41 S.W. 1031; Gulf, C. & S. F. R. Co. v. Montgomery, 85 Tex. 64, 19 S.W. 1015; Plymouth County Bank v. Gilman, 3 S.D. 170, 44 Am. St. Rep. 782, 52 N.W. 869; Ohio & M. R. Co. v. Stein, 133 Ind. 243, 19 L.R.A. 733, 31 N.E. 180, 32 N.E. 831; Printup v. Mitchell, 17 Ga. 558, 63 Am. Dec. 258; Binewicz v. Haglin, 15 L.R.A.(N.S.) 1096, note; 1 Thomp. Trials, §§ 377, 379.

ROBINSON, J. CHRISTIANSON, J., concurring in result.

OPINION

ROBINSON, J.

This is an action on a promissory note. The defense is that the note was given on a grain-option deal and that it was made without authority by James Lees, the husband of Jennie Lees. The case was fairly tried. The jury found a verdict against the defendants for $ 1,843.75, and interest; and they appeal to this court. Both the defendants claim that the consideration of the note was illegal, and Jennie Lees claimed that her husband had no...