Caswell v. Maplewood Garage

• Decision Date: 04 March 1930
• Parties: CASWELL v. MAPLEWOOD GARAGE.
• Court: New Hampshire Supreme Court

149 A. 746

CASWELL

v. MAPLEWOOD GARAGE.

Supreme Court of New Hampshire. Rockingham.

March 4, 1930.

[Copyrighted material omitted.]

Transferred from Superior Court, Rockingham County; Oakes, Judge.

Action by Burton C. Caswell against the Maplewood Garage, a partnership. Transferred on defendants' exceptions to the admission of evidence and denial of their motions for a nonsuit and a directed verdict.

Judgment for defendants.

Case for negligence. The defendant is a partnership in which Charles A. Badger and Ira A. Brown were partners. The accident occurred while Badger's son Orville C. Badger was driving a car which could be found to have been partnership property. The issue in the case was whether Orville was engaged upon an errand for the firm. Other facts are stated in the opinion. Transferred by Oakes, J., upon the defendants' exceptions to the admission of evidence and to the denial of their motions for a nonsuit and for a directed verdict.

William H. Sleeper and John W. Perkins, both of Exeter, for plaintiff.

Ernest L. Guptill, of Portsmouth, and Hughes & Burns, of Dover, for defendants.

PEASLEE, C. J.

All the direct evidence in the case is to the effect that the driver of the car which is alleged to have been negligently operated was engaged upon business of his own, which had no connection whatever with that of the defendant partnership. The plaintiff seeks to overcome this, and to sustain the ruling submitting his case to the jury because he introduced in evidence, subject to exception, certain statements made, or alleged to have been made, by the partners severally at different times after the accident.

As a part of his case, the plaintiff introduced the deposition of one partner, Badger, who died before the trial. He answered affirmatively the questions: "You think it is fair to say that this was a partnership errand getting the parts because they were not in stock in the garage?" And, "Are you willing for it to be considered that at the time he was your agent in making the trip for the partnership?"

Other parts of his deposition showed that he had no personal knowledge of any acts constituting the driver the firm's agent.

This was, at the most, an admission by one partner, not made in the course of a partnership transaction. The plaintiff produced no other evidence on the subject before he rested. As the case stood at the close of the plaintiff's evidence, there was no ground for finding the defendants responsible, and the motion for a nonsuit should have been granted.

But deficiencies in proof, or defects in evidence may be supplied at a later stage of the trial, thereby obviating objections that were valid when made. The defendants did not stand upon the case as presented by the plaintiff, but produced evidence. After the defendants had rested, the plaintiff was allowed to be recalled to testify to a statement alleged to have been made to him by the other partner, Brown, which Brown thereafter denied. This statement as testified to was that "he felt the partnership was responsible."

It may well be doubted whether these statements were sufficient in substance to take the case to the jury. The first answer made by Badger was nothing but an expression of ah erroneous view of the law. The fact that a dealer did not have an article called for by a customer is not alone sufficient to prove that the customer's subsequent trip to Boston to procure the article was made as the dealer's agent. His second answer was that he was willing that a certain conclusion, based upon law and fact, should be taken to be true. The statement alleged to have been made by Brown was an expression of opinion, involving both law and fact.

It has been said that an admission that a claim is just "must be evidence of every fact necessary to establish the claim." Nealley v. Greenough, 25 N. H. 325, 331. It is evident that such general statements usually involve expressions of opinion as to the law. They attempt to state a legal conclusion. In a simple contract case (such as Nealley v. Greenough, supra), there may be no serious objection to attributing considerable probative value to them. But when, as in the present case, the ultimate issue is complex, it seems to be exceeding the bounds of reason to say that the plaintiff's whole case may be established by such inconclusive methods of proof.

"Conclusions of law, unless inseparably blended with and necessary to the understanding of facts, or statements as to the declarant's conclusion from certain facts, his 'opinion' as it is frequently called, are not proper subjects for an admission, except in cases where the declarant might have testified to the same inference or conclusion." 2 Ch. Ev. § 1293.

The weakness of such evidence has been pointed out in several cases. Tuttle v. Dodge, 80 N. H. 304, 310, 116 A. 627; Tilton v. Daniels, 79 N. H. 368, 370, 109 A. 145, 8 A. L. R. 1073; Baker v. Haskell, 47 N. H. 481, 93 Am. Dec. 455.

But if it is assumed that a plaintiff can claim a right to the judgment of a jury upon such evidence alone, and that the defendants' only remedy is to seek to have the verdict set aside as against the evidence, the question whether these sayings of the individual partners were evidence against the firm is presented for consideration.

At the close of all the evidence the plaintiff had introduced the separate admission of each partner. Neither admission was made as a partnership transaction. No partnership business was being done at the time, and neither partner undertook to speak for the firm. Can a case against a partnership be proved in this way?

In order to reach a solution of the problem here presented, it becomes necessary to ascertain the foundation for the rule that admissions by a party may be used in evidence against him, and to determine the nature of a partnership relation and the extent of the authority of each partner to speak for the firm.

There has been no little confusion of ideas as to why the sayings of one who is a party to a suit may be used as proof of his opponent's case. The topic is extensively discussed in 2 Wig. Ev. (1st Ed.) §§ 1048, 1049; 30 Yale L. J. 355; and 2 Wig. Ev. (2d Ed.) §§ 1048, 1049. The conclusion finally reached by these authorities seems to present the true solution of the matter. The ground is not that the utterance is against the interest of the speaker, for such a rule would allow the indiscriminate reception in evidence of the hearsay admissions of strangers to the suit. The real ground may be shortly stated to be that the law holds every one responsible for what he says to the extent that his sayings may be used as evidence against himself of the truth of what he has said. 2 Ch. Ev. § 1292. "What a party himself admits to be true may reasonably be presumed to be so." Slatterie v. Pooley, 6 Mess. & W. 664.

In order for extrajudicial statements in the nature of admissions to be used as affirmative evidence, it must appear that they were those of a party. That is, there must be proof that the saying was that of a party himself or that the speaker was the party's agent, authorized to speak for him. The rule of evidence is that statements of a party as to facts material to the cause are evidence which may be introduced against him. In the case of speaking for another, the test for admissibility is not a part of the law of evidence, but of agency. The issue is one of anthority and is settled by the rules of substantive law upon that subject. 2 Wig. Ev. § 1078.

The issue, how far the statements of one are evidence against another who was his partner, or against the firm, involves questions of the law of partnership rather than that of evidence. "A partner charges the partnership by virtue of an agency to act for it; how far his admissions are receivable depends therefore on the doctrines of agency as applied to a partnership." 2 Wig. Ev. § 1078 (3).

In general, it may fairly be said that the rule is that the power of a partner to act for the firm extends only to the transaction of partnership business.

"In truth, 'the law as to partnership is undoubtedly a branch of the law of principal and agent; and it would tend to simplify and make more easy of solution the questions which arise on this subject, if this true principle were more constantly kept in view.' Lord Wensleydale, in Cox v. Hickman, 8 House of Lords' Cases 268, * * * 'All questions between partners are no more than illustrations of the same questions as between principal and agent.' Parke, B., in Beckham v. Drake, 9 M. & W. 79, p. 98. * * * The real and ultimate question in all cases like the present is one of agency." Eastman v. Clark, 53 N. H. 276, 289, 16 Am. Rep. 192. See, also, Doe, J., to same effect Id., 53 N. H. 331, 332.

It is the accepted law everywhere that one partner is not the agent of the firm to admit the existence of the partnership. Johnson v. Gallivan, 52 N. H. 143, 145, and cases cited; 1 R. C. L. 514; 1 Rowley, Part. § 466; Lind. Part. 112.

By a parity of reasoning the conclusion is reached that he is not such agent to admit that a transaction was a part of the firm's business. The rule was stated by Judge Cooley as follows: "A partner's declarations may bind his associates in partnership matters, but not in concerns foreign to the partnership; and he cannot by his mere admission or declaration bring a transaction within the scope of the business when upon the facts in proof it appears to have no connection." Heffron v. Hanaford, 40 Mich. 305, 307. Many other authorities sustain, this proposition. Taft v. Church, 162 Mass. 527, 39 N. E. 283; Mansfield v. Howell, 218 Mo. App. 557, 279 S. W. 1058; Slipp v. Hartley, 50 Minn. 118, 52 N. W. 386, 36 Am. St. Rep. 629; Thomas v. Harding, 8 Greenl. (Me.) 417.

Judged by this test, neither the admission made by Badger, nor the one alleged to have been made by Brown, would be evidence against the partnership. Neither was transacting or undertaking to transact...