Lightner v. Russell & Pugh Lumber Company, 5888

• Decision Date: 21 December 1932
• Docket Number: 5888
• Citation: 17 P.2d 349,52 Idaho 616
• Court: Idaho Supreme Court
• Parties: DUELLIN LIGHTNER, Administrator of the Estate of BERT LIGHTNER, Deceased, Respondent, v. RUSSELL & PUGH LUMBER COMPANY, a Corporation, Appellant; C. E. CHRISTY, Defendant

17 P.2d 349

52 Idaho 616

DUELLIN LIGHTNER, Administrator of the Estate of BERT LIGHTNER, Deceased, Respondent, v. RUSSELL & PUGH LUMBER COMPANY, a Corporation, Appellant; C. E. CHRISTY, Defendant

No. 5888

Supreme Court of Idaho

December 21, 1932

PLEADINGS-AMENDMENTS-PRINCIPAL AND AGENT-AGENCY-EVIDENCE-QUESTION FOR JURY-APPEAL AND ERROR-RECORD-MISCONDUCT OF COUNSEL.

1. Court may in its discretion permit amended pleading to remain on file, though amendment was filed without leave.

2. Refusal to strike amended complaint, on ground amendment had been filed without first obtaining leave, held not abuse of discretion.

3. Amended complaint by original plaintiff's administrator for balance of price of goods and for amount due on written orders did not set up different cause of action from original complaint for goods sold and delivered, and was therefore properly allowed.

4. Fact of agency is to be determined from all circumstances.

5. Existence or nonexistence of disputed agency is generally question for jury.

6. Whether one purchasing logs and giving orders on corporation was agent of corporation held question for jury.

7. Verdict will not be disturbed, where there is sufficient competent evidence to support it.

8. Declarations of agent as to his authority, made at time of transaction in question, held admissible to prove agency where merely corroborative of other evidence of agency previously introduced.

9. Permitting witness to testify relative to certain conversation held not to require reversal where answer was unresponsive and could not be considered as evidence on question at issue.

10. On appeal by one of two defendants, record must show instructions refused were requested by appellant.

11. In action for purchase price, reference of plaintiff's counsel in argument to orders for price of goods, after granting of nonsuit on second cause of action thereon, held not to require reversal.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Bert A. Reed, Judge.

Action for goods sold and delivered. Judgment for plaintiff. Motion for new trial overruled. Judgment and order affirmed.

Judgment and order affirmed. Costs to respondent.

Ezra R Whitla, for Appellant Russell & Pugh Lumber Company.

"People dealing with agent, bound to ascertain his authority." ( Lester v. Snyder, 12 Colo. App. 351, 55 P. 613; 2 C J. 562.)

"Agency must be founded upon an agreement." (2 C. J. 432.)

"Reversible error to permit testimony as to agency outside the hearing of principal to establish agency." (Cox v. Crane Creek Sheep Co., 34 Idaho 327, 200 P. 678; Cupples v. Stanfield, 35 Idaho 466, 207 P. 326.)

"Filing an amended answer setting up a new cause after the case is at issue without notice is error." (Dunbar v. Griffiths, 14 Idaho 120, 93 P. 654; C. S., sec. 6725; Tingley v. Times-Mirror Co., 151 Cal. 1, 89 P. 1097.)

James F. Ailshie, for Respondent Lightner.

In an action against the principal the authority of the agent to act may be proven by the agent himself. (Rice v. Gove, 22 Pick. (Mass.) 158, 33 Am. Dec. 724.)

The agent is a competent witness to prove his own authority when it is by parol. (Piercy v. Hedrick, 2 W.Va. 458, 98 Am. Dec. 774; Greenleaf on Ev., sec. 417.)

The declarations of an agent while acting within the scope of his business and authority are original evidence. (Greenleaf on Ev., sec. 113, p. 152 et seq.; Jones on Ev., sec. 255; Keane v. Pittsburg Lead Min. Co., 17 Idaho 179, 105 P. 60.)

The right to amend a pleading is a matter within the discretion of the court and must be exercised liberally in order to enable parties to tender and litigate all the issues of the case. (C. S., secs. 6722 and 6729; Pennsylvania-Coeur d' Alene Min. Co. v. Gallagher, 19 Idaho 101, 12 P. 1044.)

J. Ward Arney, for Respondent Christy.

BUDGE, J. Lee, C. J., and Givens and Varian, JJ., concur. Leeper, J., took no part.

OPINION

BUDGE, J.

In this action respondent (plaintiff below) seeks to recover an alleged balance due for logs and timber sold and delivered to appellant and one Christy (defendants below). The original complaint was filed by Bert Lightner as plaintiff and alleged the corporate capacity of defendant corporation; that in the transaction thereafter alleged defendant Christy was its authorized agent; that plaintiff, between May 1, 1928, and July 1, 1928, sold and delivered certain logs and timber of the agreed value of $ 1,327.72 to defendants, who each orally promised to pay the purchase price therefor; that Christy, at the time of the sale, gave plaintiff an order on defendant corporation for $ 250, which was paid by the latter; that in June, 1928, Christy gave to plaintiff two orders on defendant corporation for $ 923.60 and $ 154.06, respectively, which it retained and thereafter paid $ 373.56 thereon, leaving a balance due and unpaid from defendants to plaintiff of $ 704.16, with interest, for which plaintiff prayed judgment. Separate answers were filed by defendants denying each and all of the allegations of the complaint. Some months after the filing of such answers, without leave of court, an amended complaint was filed by Duellin Lightner, as administrator of the estate of Bert Lightner, deceased, setting forth two causes of action, in each of which is alleged the death of Bert Lightner since the commencement of the action and the appointment and qualification of respondent as such administrator; the corporate capacity of defendant corporation; the agency relation existing between defendants in connection with the transaction involved; the sale, between May 1, 1928, and July 1, 1928, of logs and timber by Bert Lightner to defendants of the agreed value of $ 1,327.72; and that defendants each orally promised to pay the purchase price thereof. The first cause of action continues with allegations that defendants paid Bert Lightner $ 623.16 on account of said purchase and no more; and that there is due and unpaid from defendants to plaintiff the sum of $ 704.16, with interest. The second cause of action continues with allegations that at the time of the sale Christy, under authority and instructions of defendant corporation, gave Bert Lightner a written order on the corporation for $ 250, which was paid; that Christy, pursuant to said agency and authority, made and delivered to Bert Lightner orders on defendant corporation on the following dates and in amounts respectively as follows: June 11, 1928, $ 928.66, and June 26, 1928, $ 154.06; that Bert Lightner, immediately upon receipt of said orders, delivered the same to defendant corporation, which thereafter retained them; that thereafter said defendant corporation paid the sum of $ 373.56 on account of said orders and no more, and there is due and owing from defendants to plaintiff the sum of $ 704.16, with interest, for which judgment is prayed.

A motion to strike the amended complaint was filed by defendant corporation, which was denied. Thereafter separate answers were filed by defendants, the answer of defendant corporation in effect denying each of the material allegations of the amended complaint, and as an affirmative defense substantially alleged that the orders referred to in the second cause of action were left with it for collection from Christy, and that certain goods sold to Bert Lightner by defendant corporation were by agreement set off against said unpaid orders and charged to the account of Christy; that said orders were left with it for collection from Christy by it as the agent of Bert Lightner. As a further affirmative defense it alleged, upon information and belief, that pursuant to a written contract between Bert Lightner and Christy certain logs were sold to the latter of which Bert Lightner informed defendant corporation, and also stated that he had sold said logs to Christy and was looking to him alone for payment and that Christy was not acting as the agent of defendant corporation in any manner.

Upon these issues the cause was tried by the court and a jury. At the close of all the evidence, a motion for nonsuit was sustained as to the second cause of action. Verdict resulted in favor of respondent and against defendant corporation alone for $ 879.36, upon which judgment was duly entered. Thereafter a motion for new trial, made by defendant corporation, was denied. From the judgment and from the order denying a new trial defendant corporation alone has appealed.

A motion to strike certain assignments in appellant's brief has been made. There is some merit in the motion. However, in the body of the brief the grounds of the motion have, in a measure, been obviated, and we have concluded to deny the motion, without indorsing the practice. An examination of the brief discloses, among other defects and omissions, an absence in the assignments of error and otherwise of reference to folios and pages of the transcript, which has placed an unnecessary burden upon the court.

The first and eighth assignments of error seek to raise the point that the court erred in refusing to strike the amended complaint for the reasons (1) that permission to file the same was not first obtained from the trial court; and (2) that it set up a new and different cause of action. The amended complaint was filed without leave being first obtained, but "Having been placed on file, the court could permit it to remain. The matter was entirely within the discretion of the court. (Hedges v. Dam, 72 Cal. 520, 14 P. 133.)" (Kelly v. Leachman, 3 Idaho 629, 33 P. 44, 45.)

As no abuse of discretion is shown, no error was committed in denying the motion on the first ground, especially as the order, in effect, granted such permission. As to the second ground, in Hoy v. Anderson, 39 Idaho 430, 434, 227 P. 1058,...