H. C. Behrens Lumber Co. v. Lager
| Decision Date | 04 October 1910 |
| Citation | 128 N.W. 698,26 S.D. 161 |
| Parties | H. C. BEHRENS LUMBER COMPANY, Plaintiff and respondent, v. HATTIE E. LAGER et al., Defendants and appellants, and Home Building & Loan Association et al., Interveners and appellants. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brown County, SD
Affirmed
C. N. Harris, Clarence O. Newcomb
Attorneys for appellants.
C. R. Jorgenson
Attorney for respondent.
Opinion filed October 4, 1910
In deciding this cause the learned circuit judge before whom it was tried stated his conclusions of law substantially as follows: That the plaintiff, the defendant Tucker, and the defendant Blanchard are each entitled to a judgment against the defendant Hattie E. Lager for $649.95, $57.68, and $66.34, respectively, with interest, costs, and disbursements; that the same is a lien upon the land described in the complaint; that the lien of the mortgage on said land executed by the defendant Hattie E. Lager to the defendant building and loan association on October 14, 1907, is subsequent and inferior to the lien of each of the aforesaid judgments; that the interest of the defendant Gannon, the present owner of the premises, is subsequent and subject to the lien of the aforesaid judgments; that his discharge in bankruptcy bars any recovery as against defendant Louis Lager; and that the defendants Schile, White, Crawford, Williamson, and Hattie E. Lager have no right, title, interest, or lien in, to, or upon the premises, From a judgment conforming to these conclusions and, the order denying their application for a new trial, Gannon and the building and loan association appealed.
It is disclosed by the abstract that Mr. C. N. Harris, as a witness for the plaintiff, testified as follows: Thereupon the plaintiff offered in evidence the original answer of the defendant association, which was received over the objection that it was "incompetent, irrelevant, and immaterial." It will be assumed that such answer contained this language, as stated in respondent's additional abstract: "This defendant is informed and believes, and so alleges, the fact to be upon information and belief that one Louis Lager was acting as agent for the defendant Hattie E. Lager in the construction of said house." If it did not, there is nothing to show what it contained, as it was not made a part of the original record transmitted to this court. If it did contain the alleged language, it clearly was "relevant" and "material," as it contained an admission against the defendant association tending to prove a material fact, namely, that Louis, the husband of Hattie E. Lager, was his wife's agent, authorized by her to purchase the material furnished by the plaintiff and used in the construction of her building. An objection to the evidence that it is "incompetent," without stating in what its incompetency consists, is insufficient. I., B. & W. Ry. Co. v. Cook, 102 Ind. 133, 26 N.E. 203; Weik v. Pugh, 92 Ind. 382; Stanley v. Sutherland, 54 Ind. 339; State v. Eisenhour, 132 Mo. 140, 33 S.W. 785. Moreover, the ruling of the learned circuit court would not have been erroneous even if a proper objection had been interposed.
Undoubtedly, an amended answer, complete in itself, should be considered as if no former answer had been served so far as the issues to be tried are concerned. 1 Ency. Pl. & Pr. 626. But it is quite another and different question whether a pleading which has been superseded by an amended pleading rs admissible to prove an admission--a question concerning which the authorities are conflicting. Ponce v. McElvy, 51 Cal. 222; Brown v. Pickard, 4 Utah, 292, 9 Pat. 573, 1 1 Pac. 512; Mulligan v. Ry. Co., 36 Iowa, 181. Failure to distinguish between the effect of a superseded pleading on the issues and its effect as evidence of an admission of fact has caused the confusion; some courts seeming to have assumed, if such a pleading be considered at all, it must be considered as conclusive, whereas, it should be regarded when introduced in evidence as any other writing subject to contradiction or explanation by the party against whom it is sought to be used. When an original complaint or answer contains an admission of a material fact which a party desires to establish on a trial, there is no good reason why it should not be received in evidence as are other written declarations and admissions, leaving the opposite party the right to controvert it by evidence and show, if he can, that the declaration or admission was inserted through inadvertence by his own mistake or by the mistake of his attorney. Strong v. Dwight, 11 Abb. Prac. N. S. (N.Y.) 319.
This court, in considering the admissibility of a superseded complaint, after referring to the California cases and one in Minnesota, used this language:
Corbett v. Clough, 8 S.D. 176, 65 N.W. 1074. In that case this court went far enough. perhaps too far; but it did not decide that a superseded pleading always should be excluded. Of course, the unauthorized declaration or admission of an agent does not bind his principal. Unless a writing, whatever it may be, is at least presumptively the intentional or authorized act of the party against whom it is offered, it should not be received without preliminary proof of the party's responsibility for its contents. Therefore, admissibility without other evidence depends on the nature of the writing. In Corbett v. Clough, supra, it was held that a superseded complaint verified by the plaintiff's attorney should not be presumed to be the authorized act of the party. The distinction between that case and one where the pleading is verified by the party. himself is apparent. A party, plaintiff or defendant, who verifies a pleading, should be presumed to have known its contents, and it should be received in evidence, subject to such explanation as the party may see fit to offer. In the case at bar, as the original complaint was verified, it should be presumed that the association's original answer also was verified. Rev. Code Civ. Proc. § 133. And, in absence of any showing to the contrary, it should be presumed, in support of the ruling of the trial court, that such original answer was verified by an officer of the association authorized to bind the corporation by his admissions. Therefore, as the record on this appeal does not affirmatively show error in the admission of the association's original answer, the ruling relating thereto must be sustained.
The contention that there was an entire failure of proof that Hattie E. Lager ever authorized her husband to represent her as her agent, or that she ever ratified his acts with reference to his dealings with the plaintiff, is not tenable. It was stipulated on the trial that Hattie E. Lager owned the land described in the complaint from a time prior to the making of all the contracts for material and labor involved in this action, and that she continued to own the same until each of the claims for liens mentioned in the judgment appealed from was filed with the clerk of courts. H. C. Behrens, an officer of the respondent corporation, was asked this question: "Do you know who Mr. Lager was acting for at the time he got this material?" To which appellants objected as "incompetent and immaterial, and that the witness has not shown himself competent to testify, and for the further reason the relationship cannot be proven in that way." The witness answered: "Mr. Lager stated the property was in his wife's name, and he was getting the lumber for that property." The objection was properly overruled. The question was whether the witness knew a certain fact. It should have been answered either, "Yes" or "No." The answer was not responsive; but there was no motion to strike out. So the fact stands undisputed that Louis assumed to act as his wife's agent when he made the contract for the materials furnished by the plaintiff. This and other...
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