Fremont Butter & Egg Co. v. Peters

• Decision Date: 18 June 1895
• Citation: 45 Neb. 356,63 N.W. 791
• Parties: FREMONT BUTTER & EGG CO. v. PETERS ET AL.
• Court: Nebraska Supreme Court

45 Neb. 356

63 N.W. 791

FREMONT BUTTER & EGG CO.

v.PETERS ET AL.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. It is conceded by counsel for plaintiff in error that the facts in the case at bar, and the rules of law applicable thereto, are substantially similar to those in the case of Egg Co. v. Snyder, opinion in which is reported in 58 N. W. 149, 39 Neb., beginning on page 632; and, to the extent that the points of alleged error stated in the briefs and relied upon in this case were in that considered and decided, it is followed and adhered to, and such points will not be here again discussed, or the conclusions restated in the syllabus.

2. Where certain papers of the files of the trial court, evidential of the facts supporting the grounds of a motion filed, and which are referred to in the motion, and made a part thereof, to be considered with it, which appear to be necessary to its proper examination and determination, they must be brought up with the record, and preserved in the bill of exceptions. If this is not done the ruling of the trial court upon the questions presented by the motion cannot be reviewed in this court.

3. “Statements or admissions made by a witness out of court, in conflict with his testimony on the trial, may be shown on cross-examination.” Markel v. Moudy, 14 N. W. 409, 13 Neb. 322, followed.

4. The action of the trial court in sustaining objections to a certain interrogatory during redirect examination examined, and held not erroneous.

Error to district court, Saunders county; Wheeler, Judge.

Action by Peters & Son against the Fremont Butter & Egg Company. There was a judgment for plaintiffs, and defendant brings error. Affirmed.

G. W. Simpson and Frick & Dolezal, for plaintiff in error.

Geo. I. Wright and J. R. Gilkeson, for defendants in error.

HARRISON, J.

This action was commenced in the district court of Saunders county by Peters & Son against the Fremont Butter & Egg Company, a corporation, to recover the sum of $312.80, alleged to be due on account for merchandise sold and delivered to the corporation. The answer of the corporation contained a general denial, and also a further plea of certain facts which it is claimed, if proved, would establish that the court had no jurisdiction over either the subject-matter or the corporation. Judgment was rendered against the corporation in the trial court, and it has removed the case to this court for review. The cases of F. J. Snyder & Co. and Killian Bros. & Co. against the same corporation, tried in the district court of Saunders county, and in both of which the corporation was unsuccessful, and brought to this court by proceedings in error, were, as to the issues joined by the pleadings, similar to the case at bar; and assignments of error in those cases raised for examination and decision points similar to the questions presented to this court in the case at bar, with two exceptions. The cases referred to have been reached for decision, and an opinion was filed in the one, which was followed in the other, for a report of which see 39 Neb. 632-636, 58 N. W. 149. The conclusions therein reached and announced, being applicable in the present case, will be followed and adhered to.

Before the trial of the case in the district court a motion was filed on behalf of Peters & Son as follows: “Now comes the plaintiff, and moves the court to strike out of the defendant's answer the second defense therein set forth, for the reason that the same is immaterial and waived, and cannot at this time be pleaded in bar to the action. Plaintiff refers to, and makes a part of this motion, the transcript of the lower court, the appeal bond, the original summons, and the answer of the said defendant in the lower court, which are now on file in this court in this case.” This was sustained, and the portion of the answer alluded to was ordered stricken out of the answer, to which action counsel for defendant excepted, and have made it the subject of one assignment of error. Presumably, the trial court had before it the papers in the case to which reference is made in the motion, and the facts disclosed by them entered into its consideration and assisted it in arriving at the conclusion it did in regard to the disposition to be made of the motion. The transcript, appeal bond, original summons in the case, and answer filed in the court inferior to the district court, are not in or of the bill of exceptions or other portion of the record filed in this court. Owing to this incompleteness of the record in relation to the motion, we are unable to determine whether the ruling of the trial judge was erroneous, or wholly right and proper, and cannot, therefore, review it.

The only further assignments of error which we need notice are as follows: “The court erred in admitting in evidence the paper marked ‘Exhibit DD, Dec. 7, 1892. Geo. F. Corcoran, Official Reporter,’ and to the admission of which plaintiff in error duly excepted.” “The court erred in refusing to allow the plaintiff in error to prove by the witness George Haskell the facts offered by plaintiff in error to be proved by said witness in relation to said letter (Exhibit DD) aforesaid, and to which plaintiff in error then excepted, as shown on page 177 of bill of exceptions.” Exhibit DD, referred to in the assignment quoted, was as follows: “Fremont, Nebraska, Sep. 2, 1889. To Whom It may Concern: This is to certify that Mr. J. Darrah, of Wahoo, is our authorized agent to purchase butter and eggs. Any drafts he may make on us in payment for same will be duly honored. Yours, truly, Fremont Butter & Egg Co., J. Dixon Avery, Mgr.” It is insisted by counsel for the corporation that it was error to admit this exhibit, for the reason that it was not competent as proof of the agency of the party named in it, Mr. Darrah,--being a statement made by the witness Mr. Haskell at a time when he possessed no other position than that of bookkeeper for the corporation, and had no authority to, and could not, bind it by his statement, either verbal or written, in regard to its agents; second, that it was no part of a cross-examination. And they further contend that, after admitted, it was error for the court to refuse to allow them to interrogate the witness in respect to it in the redirect examination. Counsel for Peters & Son insist that the letter or exhibit in question was not introduced on their part as substantive evidence of the fact of the agency of Mr. Darrah, but for the sole purpose of showing that the witness then undergoing...