Commonwealth v. Hayes

• Decision Date: 23 November 1887
• Citation: 145 Mass. 289,14 N.E. 151
• Parties: COMMONWEALTH v. HAYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 289

14 N.E. 151

COMMONWEALTH v. HAYES.

Supreme Judicial Court of Massachusetts, Plymouth.

November 23, 1887

COUNSEL

Asa P. French, for defendant.

The instructions given to the jury that, "nothing to the contrary appearing, the natural and just inference from a sale by a servant employed in his master's shop of his master's goods there kept for sale would be that such a sale was authorized by his master," is incorrect when the criminal liability of the master for an illegal sale by the servant is in question, for it is equivalent to saying that such a sale is prima facie authorized by the master. This is directly contrary to the doctrine subsequently laid down in Com. v. Briant, 142 Mass. 463, 8 N.E. 338; Com. v. Stevenson, 142 Mass. 466, 8 N.E. 341. That the first and second instructions asked for by the defendant should have been given as requested follows from the doctrine of Com. v. Wachendorf, infra. The court, in its instructions upon the question of "good faith," has qualified the doctrine in Wachendorf's Case, and has erred in so doing. Com. v. Wachendorf, 141 Mass. 270, 4 N.E 817. The statute provision that "neither husband nor wife shall be allowed to testify as to private conversations with each other" does not apply, if either is acting as the agent of the other, or in any representative capacity to such part of the conversation as relates to the business of such agency, or to such part of the conversation as is incident to business transactions not between the husband and wife as such, but between either of them and the other in such representative capacity. Hunt v. Eaton, 55 Mich. 362, 21 N.W. 429; Wood v. Chetwood, 27 N.J.Eq 311.

A.J Waterman, Atty. Gen., for the Commonwealth.

The rulings and refusals to rule were correct. The court properly refused to allow the defendant to testify as to the instructions given her husband, no one else being present at the time they were given. Pub.St. c. 169, § 18, cl. 1. The purpose for which this evidence was to be used, to-wit, to show good faith, could not affect its inadmissibility. The instruction that, "nothing to the contrary appearing, the natural and just inference from a sale by a servant employed in his master's shop of his master's goods there kept for sale, would be that such a sale was authorized by the master," is correct. There is a presumption that an agent acts within the scope of his authority and duty. Com. v. Nichols, 10 Metc. 263; George v. Gobey, 128 Mass. 289; Com. v. Holmes, 119 Mass. 195. It is well settled that whoever has a license, whether he conducts the business personally, or by servants, is bound at his own peril to keep within the terms of it. One holding a liquor license cannot justify for violations of the conditions thereof by evidence that he gave instructions to a servant to follow the conditions of the license, without showing that he made some effort to see that his instructions were followed. Com. v. Nichols, supra; Com. v. Wachendorf, 141 Mass. at p. 272, 4 N.E. 817; George v. Gobey, supra; Com. v. Kelley, 140 Mass. 441, 5 N.E. 834; Com. v. Uhrig, 138 Mass. 492; Com. v. Sinclair, Id. 493.

OPINION

FIELD J.

The provision of the statutes (Pub.St. c. 169, § 18, cl. 1) that "neither husband nor wife shall be allowed to testify as to private conversations with each other" is not confined to conversations upon subjects which are confidential in their nature, and it includes conversations between them relating to business done by one as agent of the other. If the defendant could not be allowed to testify that she gave directions to her husband relating to her business, for the purpose of showing that they were given, she could not be allowed to testify that she gave them, for the purpose of proving that she acted in good faith in giving them. The evidence offered was rightly excluded. Dexter v. Booth, 2 Allen, 559; Jacobs v. Hesler, 113 Mass. 157; Drew v. Tarbell, 117 Mass. 90; Brown v. Wood, 121 Mass. 137.

The fourth and fifth instructions given relate to the good faith of the defendant in giving directions as to the management of her business. The presiding justice had already instructed the jury in conformity with the decision in Com. v Wachendorf, 141 Mass. 270, 4 N.E. 817. If, from the nature of the business, and the character of the servants employed in it, the defendant could not reasonably expect her directions to be obeyed, and if she took no care and exercised no supervision for the purpose of ascertaining that her directions were obeyed, it was competent for the jury to find that the directions were not given in good faith; and that the sales of intoxicating liquors, on which the commonwealth relied, were made with her consent. It might be contended that she could not be convicted if she in fact expected that her directions would be obeyed, although this was not a reasonable expectation. We think that it was the duty of the defendant, if she intended to raise this question, distinctly to have called the attention of the court to it. The exceptions to this part of the charge are general and must be overruled. In Com. v. Wachendorf, ubi supra, the defendant had a license, and the complaint charged that he unlawfully sold intoxicating liquors ...