Fremont Butter & Egg Company v. Peters & Son
| Decision Date | 18 June 1895 |
| Docket Number | 6297 |
| Parties | FREMONT BUTTER & EGG COMPANY v. PETERS & SON |
| Court | Nebraska Supreme Court |
ERROR from the district court of Saunders county. Tried below before WHEELER, J.
AFFIRMED.
George W. Simpson and Frick & Dolezal, for plaintiff in error.
George I. Wright and J. R. Gilkeson, contra.
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 the subject-matter nor 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 at 632-636. The conclusions therein reached and announced being applicable in the present case, will be followed and adhered to. Before the trial of this case in the district court a motion was filed on behalf of Peters & Son, as follows: This was sustained, and the portion of the answer alluded to was ordered stricken out, 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:
Exhibit "DD," referred to in the assignment quoted, was as follows:
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 book-keeper for the corporation and had no authority to and could not bind it by his statements, 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 cross-examination had made a written statement in relation to such fact differing from and contradictory of his testimony during the trial. The witness to whom reference has been made was G. E. Haskell, who, while testifying as a witness called on the part of the corporation, was interrogated during his direct examination in regard to J. Darrah and his connection with the corporation in the capacity of agent and answered as follows:
Q. Now, were you acquainted with J. Darrah during the time he was in business in Wahoo?
A. Yes, sir.
Q. Do you know of his being in business here?
A. I do.
Q. What do you say?
A. Yes, sir.
Q. In what business?
A. In the butter and egg business.
Q. You may state whether he had any connection with the Fremont Butter & Egg Company, defendant in this action, while he was in business here, if he was connected with the defendant in any way?
A. He was not.
And during his cross-examination testified in this connection and also in respect to "Exhibit DD." We here further quote the record showing the actions of the court and counsel with reference to the admission of the exhibit:
Q. Then unless it was at the time he had charge of, the time he was working the butter at the creamery, he never had any connection with the defendant company as an agent?
A. Never while I was there as an agent.
Q. Never did at any time?
A. No, sir.
Q. Did he ever make a statement he was an agent of the company?
A. He did.
Q. That was in the fall of 1889?
A. Yes, sir.
Q. You may look at exhibit marked "DD" and answer whether or not that is a statement you made in reference to his being an agent of the defendant?
A. I wrote that.
Q. That is something you wrote?
A. Yes, sir.
Plaintiff offers letter marked Exhibit "DD" in evidence as part of the cross-examination of this witness. Objected to, incompetent, immaterial, irrelevant, because no sufficient foundation has been laid, and because not proper cross-examination. Overruled. Defendant excepts.
Exhibit "DD" read to the jury.
The quotation...
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