Gifford v. Thomas' Estate

• Decision Date: 12 April 1890
• Citation: 19 A. 1088,62 Vt. 34
• Parties: H. I. GIFFORD v. B. F. THOMAS' ESTATE
• Court: Vermont Supreme Court

19 A. 1088

62 Vt. 34

H. I. GIFFORD v. B. F. THOMAS' ESTATE

Supreme Court of Vermont

April 12, 1890

GENERAL TERM, OCTOBER, 1889.

The judgment of the County Court is affirmed, and ordered to be certified to the Probate Court.

J P. Lamson, for the defendant.

D C. Denison & Son, for the plaintiff.

OPINION

ROSS

In Lytle v. Bond, 40 Vt. 618, it is held that an agent is not a party to a contract which he has made for the principal, and that he is a competent witness both to establish his agency and the contract, although his principal has deceased, and the existence and scope of the contract are involved in the trial in which he is called as a witness. This decision has been recognized and followed in several subsequent decisions. Hence, the admission of the witness Bailey to testify to his agency was correct. On Bailey's testimony the referee has found that he was the agent of the testator in buying the goods for which the plaintiff seeks as allowance, and that the plaintiff sold them, relying on the credit of the testator. This finding entitles the plaintiff to be allowed for the goods so sold, and renders it immaterial to determine whether the testator had held Bailey out as his agent to make the purchases, or whether the evidence excepted to on that branch of the case was admissible. This disposes of the exception in regard to the admission of the Brooks note, the exception to the charges for goods to be used in Bailey's family, and, apparently the exception to the plaintiff's testifying to the handwriting of the charges on his ledger. It is, however, contended by the defendant that his testimony in regard to the handwriting of the charges on his ledger was inadmissible, because the ledger was not the original book in which the items of the account were first charged. The finding of the referee is rather meager on this subject. He says: "Bailey was insolvent and Gifford knew it, and changed his account to George Bailey, agent, on his ledger, but kept it on a small pass-book which he carried, upon the fly-leaf of which was written, 'George Bailey in account with H. I. Gifford.'" From this, it does not appear that the ledger was not the book upon which he made his charges. If it was, he might well testify in whose handwriting the charges were made. R. L. 1004. The pass-book might, and would seem to, have been used for making memoranda to insure accuracy in the charges, but the ledger was the paramount book to show the items of his account. No error, affirmatively, appears in regard to the admission of this testimony. The finding that the plaintiff sold the goods, relying on the credit of the testator, renders them proper charges against the testator, notwithstanding the variance between the heading of the account on the ledger and on the fly-leaf of the pass-book.

I...