International Harvester Co. v. Campbell

• Decision Date: 13 June 1906
• Citation: 96 S.W. 93
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. CAMPBELL.
• Court: Texas Court of Appeals

96 S.W. 93

INTERNATIONAL HARVESTER CO. OF AMERICA v. CAMPBELL.

Court of Civil Appeals of Texas.

June 13, 1906.

On Rehearing, June 29, 1906.

Appeal from District Court, Bexar County; A. W. Seeligson, Judge.

Action by R. A. Campbell against the International Harvester Company of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Cobbs & Hildebrand and Wm. Aubrey, for appellant. Davis & McFarland, for appellee.

NEILL, J.

This suit was brought by appellee against the appellant to recover $660 damages for a breach of contract of employment. The appeal is from a judgment for $570 in favor of the appellee.

The first assignment of error insisted on complains of the court's overruling a general demurrer to plaintiff's petition. The petition alleges: "That defendant on or about June 4, 1903, acting through its duly-authorized agent, J. D. Cameron, while acting as such agent, and within the apparent scope of his authority, and while being held out by the defendant to this plaintiff and the world as such agent, employed plaintiff to sell goods, wares, and merchandise of defendant in the San Antonio territory, in the capacity of a drummer or salesman. That said employment was for the period of 12 months, beginning on the 15th day of June, 1903, and ending on the 15th day of June, 1904. That in consideration of the services of plaintiff as aforesaid, defendant, acting by and through its said agent, agreed, and promised, and contracted to pay plaintiff the sum of $95 per month, for each month during the full period of plaintiff's employment. That in pursuance of said contract plaintiff, on, and continuously after, the said 15th day of June, 1903, tendered his services to defendant, and at all times thereafter offered to do and perform any and all work required of him under his contract of employment; but that defendant has, at all times since said agreement and contract was made, failed and refused to allow plaintiff to enter upon his duties as drummer or salesman under said contract, and has failed and refused to pay plaintiff anything whatever by reason of said contract. That at the time plaintiff entered into said contract with defendant, as alleged, plaintiff informed defendant's said agent that he (plaintiff) was then in the employment of Andrews & Co. at San Antonio, Texas, and that he had permanent employment at a salary of $60 per month. That said agent acting for defendant, and in full line and scope of his duty as such agent, on or about the 4th day of June, 1903, requested plaintiff to give up his said position and be ready to assume his duties for defendant under said contract, and on said 15th day of June, 1903, and that by reason of said contract plaintiff did give up his said position with said Andrews & Co. and was ready to begin work for defendant under said agreement and contract of said date." This is enough of the petition to show the objection made to it under the assignment, which is disclosed by the following proposition, asserted under it in appellant's brief: "In declaring upon a simple contract the pleader must aver the existence of a consideration, and if the consideration consists of mutual promises, these must be alleged, as well as that they are concurrent." The rule is well established that when a pleading is challenged by a general demurrer, every reasonable intendment from the allegations contained, taken as a whole, will be indulged. Insurance Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 187; Telephone Co. v. Grimes, 82 Tex. 94, 17 S. W. 831: Patterson v. Frazer (Tex. Civ. App.) 79 S. W. 1079. When this rule is applied to plaintiff's petition, it is apparent that it is good as against a general demurrer. For the intendment is so clear from the allegations that the plaintiff accepted the alleged employment of the defendant, that it could hardly be made plainer by a specific allegation of such fact.

The second assignment of error is that "the court erred in permitting plaintiff to testify, over the objections of defendant that a letter alleged to have been written by defendant to J. D. Cameron was as follows, viz.: `We have received your letter, also Mr. Campbell's references which are good. You are on the ground, employ him'—as appears more fully by defendant's bill of exceptions No. 1." The bill of exceptions disclose a number of objections to the testimony, but as the proposition under the assignment embraces only one, it alone will be considered. It is: "In order to admit parol evidence of the contents of a letter its genuineness must be established." This proposition involves only the establishment of the genuineness of the letter. If, then, there was sufficient evidence of its genuineness to admit its contents in evidence, the assignment should be overruled, regardless of any other objection that may have been urged upon the trial to the introduction of such testimony, for no other objection is presented for our consideration. The genuineness of a writing may be proved by indirect or circumstantial evidence, as other facts; and in some instances, this is the only character of evidence that can be adduced. Before the testimony complained of was introduced, it was shown by the testimony of appellee that the letter in question was written on one of the International Harvester Company's letterheads; that Mr. Cameron, the agent of the company showed him the letter about the 1st of June, 1903; that the signature was the same as that affixed to a letter he had received from the company a few days before and to other letters of the company written to Mr. Boldic, its traveling agent. The defendant and its attorney had been duly notified to produce the letter upon the trial, or that secondary evidence would be introduced to prove its contents. It was not denied by defendant or its counsel that such letter had been written, or was in their possession. The only challenge to plaintiff was: "You must show the genuineness of such letter before you can prove its contents." These circumstances. when taken in connection with the contents of the letter, fully meet the challenge. Upon the subject of authentication of a writing by its contents, Wigmore on Ev. § 2148, observes: "If Doe is the sole person who knows the circumstances of a certain event, and if a letter arrives purporting to be from Doe and stating those circumstances, and the statement appears by subsequent development to be accurate, it would be a simple matter, for the law, as well as for common sense, to deem that sufficient evidence of Doe's authorship had been furnished." Campbell was seeking employment from the company; its agent, Cameron had written informing the company of the fact; Campbell's references had been sent to the company; a letter is received in reply written from the company's office in Chicago, on one of its letterheads, bearing the same signature as other letters of the company to its agent, in which it is said: "We have received your letter, also Mr. Campbell's references, which are good." As no one, save the company, could have received the letter and references mentioned in the letter received by Cameron, and shown to plaintiff, its contents, when taken in connection with other facts, are, under the principle quoted, cogent evidence of its genuineness. We, by no means, wish to be understood as holding that the mere contents of a written communication, purporting to be a particular person's, are of themselves, sufficient evidence of genuineness, for the contrary is the rule.

The third assignment of error is directed against the action of the court in refusing appellant's motion to strike out that part of the testimony of plaintiff in which he testified that J. D. Cameron, about June 1, 1903, received a letter from P. J. Bedell, in which Bedell wrote him (Cameron) that he was in San Antonio, and to employ plaintiff if he (Cameron) thought he was the right man, and would satisfy defendant. The proposition under the assignment is that "it is error to admit parol evidence of the contents of a written instrument, without proof of the loss, etc., of the original." Before considering this proposition it will be observed that the general rule is that objections to testimony must be taken when it is offered, and if not made then are considered waived, and its admission is no ground for a new trial. Ann Berta Lodge v. Leverton, 42 Tex. 18. No reason is or can be shown why the objection asserted in the proposition was not interposed when the testimony was offered. However, eliminating "etc." from the proposition (for "et cetera," which such letters denote, is too indefinite in its specification to permit consideration), the proposition, while abstractly correct, is inapplicable to the question, and should not be sustained. The evidence shows that P. J. Bedell, by whom the letter purported to be written, was the state agent of defendant with office in Dallas, Tex.; that defendant had been notified to produce the letter upon trial; that when last seen it was in Cameron's, defendant's agent's, possession, which was constructively the possession of defendant; that defendant never produced nor disavowed its ability to produce the letter. In view of these facts, it was not necessary to prove its loss in order to prove by parol the contents of the writing. For when an instrument is such as would naturally be in possession of the adverse party or of his agent, and when last seen was in such possession, and the party, after being notified to produce it upon trial, refuses to produce or account for it, secondary evidence is admissible to prove its contents. Elliott on Ev. § 1427 et seq.

Upon the trial plaintiff offered to testify that J. D. Cameron was straightening out and shipping a stock of goods of defendant at San Antonio during the month of May, or June, 1903, and employed a man named Scholl for that purpose and that said employé worked three days. The defendant objected to such testimony upon...