Campbell v. Sherman

Decision Date05 January 1883
Citation14 N.W. 484,49 Mich. 534
CourtMichigan Supreme Court
PartiesCAMPBELL v. SHERMAN.

While the acts and representations made by a party, claiming to act as the agent of another, should not properly be admitted in evidence until the agency itself is shown, where, as in this case, ratification of these acts is relied upon to establish the agency, it may not be error to admit such acts and representations in the first instance.

In this case the evidence does not establish an agency or partnership as between the party purchasing and the defendant, and the plaintiff cannot recover.

Error to Washtenaw.

E.B. Norris and Albert Crane, for plaintiff.

Frazer Hewitt & Freeman, for defendant and appellant.

CAMPBELL J.

This suit was brought on the common counts to recover the price of two orchards of apples grown in 1878, and claimed to have been purchased by defendant. One orchard was owned by plaintiff and one by William Beach, who assigned his claim to plaintiff. The case relied on is that the purchase was made in each case at a round sum, by one Peter Cramb. There was evidence, though contradictory, tending to show that he claimed to act either as agent or partner of Sherman. And as there was no plea in abatement for want of parties, Sherman could be made to respond in the suit in case either of these theories was made out. At the opening of the trial, plaintiff, under objection, was allowed to show all the facts attending the sale, including Cramb's representations concerning his connection with and authority from Sherman. This was objected to until the authority was shown to bind Sherman, and an exception was based on this admission of proof of Cramb's statements in advance of such showing.

It is not to be denied that there is some danger that the jury may be misled into inferring agency from proof of the agent's acts and statements. But we are not satisfied that under such circumstances as were here presented the court was in error in treating the matter as one relating to the order of proof. There are always cases which would be best presented by following the order pursued here. Plaintiff was obliged to rely on circumstantial evidence of recognition or ratification, unless he chose to rest his case on the testimony of Cramb, who was interested against him, and who under the old rules might not have been competent at all. And where ratification is relied on proof of the dealings to be ratified must necessarily be put in first. We do not think this objection tenable.

Although there are many points alleged as errors, the...

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