Du Bois v. Perkins

• Citation: 27 P. 1044,21 Or. 189
• Parties: DU BOIS v. PERKINS.
• Decision Date: 26 October 1891
• Court: Supreme Court of Oregon

27 P. 1044

21 Or. 189

DU BOIS v. PERKINS.

Supreme Court of Oregon

October 26, 1891

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by L.C. Du Bois against R.S. Perkins to recover the value of certain cigars. Judgment for plaintiff. Defendant appeals. Reversed.

STATEMENT BY THE COURT. This is an action to recover $412.50, the value of a certain lot of cigars alleged to have been sold by the plaintiff to the defendant, at his request. The evidence offered tended to prove that one Ed Kidder negotiated the sale to the defendant, and billed the cigars to Perkins in his own name. The defendant was not present when the cigars were taken to his place of business, and his contention is that he bought the cigars of Kidder, and paid him for the same, without any notice that they were owned or claimed by the plaintiff. The plaintiff, to sustain the issues on his part, called one C.A. Smith as a witness, who testified that he was a drayman, and delivered the cigars to the defendant. He was then asked by plaintiff's counsel the following question: "Who did you deliver the cigars to, and who was present when you delivered them?" And he answered "I delivered them to the porter at the hotel. I think it was Mr. Perkins' son. There were present Ed Kidder besides the porter and myself." And this question "What conversation took place when these cigars were delivered?" Proper objections were made to this question, but the same were overruled, and an exception taken, and the witness answered: "The porter said to Mr Kidder, 'I see you are in the cigar business now;' and Mr. Kidder answered, 'No; I am just helping out Du Bois.' " A verdict and judgment were rendered for the plaintiff, from which judgment this appeal is taken.

(Syllabus by the Court.)

Conversation between the porter at an hotel and one K., in relation to certain goods then being delivered at the hotel for P., who was not present, is not competent evidence in an action against P. for the price of the goods. Such conversation is hearsay.

On appeal, error will not be presumed, but, where it is shown by the record, there is no presumption that it was rendered harmless or obviated during the trial, where the record is silent.

An agent intrusted with the possession of the goods of another for sale, may sell the same to one who has no knowledge of his agency, and receive the purchase money thereof; and in like manner, if he sell in his own name, without disclosing his principal, he may receive the purchase money for the goods sold.

R.R. Giltner and J.J. Daly, for appellant.

X.N. Steeves, for respondent.

STRAHAN C.J.

Only a single question is presented on this appeal, and that is...