Livingston Manufacturing Company v. Rizzi Brothers
| Decision Date | 05 February 1913 |
| Parties | LIVINGSTON MANUFACTURING COMPANY v. RIZZI BROTHERS |
| Court | Vermont Supreme Court |
October Term, 1912.
GENERAL ASSUMPSIT. Plea, the general issue. Trial by jury at the September Term, 1911, Washington County, Taylor, J presiding. Verdict directed for the plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.
Affirmed.
M M. Gordon for the defendants.
John W. Gordon for the plaintiff.
Present: ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
The plaintiff is a corporation organized under the laws of the state of Maine, having its principal place of business at Rockland in that state. It manufactures and sells granite cutting machines and among these is one known as the Padbury Surfacer. The plaintiff's evidence tended to show that one Carroll, who resides in Barre, was its agent in selling granite tools and supplies, and had been such agent since March 1, 1910. That Carroll solicited and obtained the order for the surfacer here in question. That the defendants did not want the bush hammer which went with it, and asked Carroll to get a price on the machine without this hammer. That a week or so after this talk, Carroll received word that the plaintiff would furnish the machine without the hammer for two hundred and twenty-five dollars. That he so reported to the defendants, who gave him an order for the machine which he forwarded to the plaintiff at Rockland. The plaintiff shipped the machine to the defendants, and it was set up in their shed at Barre and turned over to them August 23, 1910. That Carroll was the only person with authority to solicit or obtain this order, and that the Graham whose name appears in the case was only employed to do certain repairing for the plaintiff. That the defendants kept and used the machine without notice of its non-acceptance being given to the plaintiff or its agent Carroll until December 5, 1910, when they wrote the plaintiff a letter enclosing a check for seventy-five dollars, stating that this was in payment for the surface cutter (head) and that the frame was unsatisfactory and subject to plaintiff's order.
1. The plaintiff called Stephen R. Rizzi, one of the defendants, as a witness, and showed by him that the plaintiff sent the defendants monthly statements showing the amount claimed to be the full contract price,--$ 225--and requesting payment, and that the defendants never made reply to these statements until they sent the letter of December 5, hereinbefore referred to,--claiming that this silence and failure to complain was a circumstance from which an inference against them could be drawn. Thereupon, the defendants offered to show that they bought the machine from one Graham, and that they notified him of the unsatisfactory condition of the machine, and that that was the reason why they did not sooner notify the plaintiff. This evidence was excluded and the defendants excepted. We need not examine this question, for the witness was later allowed to say that the reason why they did not sooner notify the plaintiff was that they had nothing to do with Mr. Livingston (evidently meaning the plaintiff) about the machine, because they bought it, not through Livingston, but through Graham. So if there was any error in excluding the offered evidence it was rendered harmless by its subsequent admission. In re Claflin's Will, 75 Vt. 19, 52 A. 1053, 58 L. R. A. 261; Walker v. Collins61 Vt. 542, 17 A. 744; Davis v. Randall, 85 Vt. 70, 81 A. 250; Hindle v. Healy, (Mass.) 204 Mass. 48, 90 N.E. 511.
2. For the purpose of laying a foundation for the admission of the letter of December 5, the plaintiff showed the letter to this defendant and the latter identified it and admitted that he wrote it for his firm. Thereupon, the defendants' counsel asked the witness what the seventy-five dollar payment was for. An objection being made, the question was excluded and the defendants excepted. Various reasons might be given why this ruling was free from error. In the first place, it was not cross-examination and no offer was made and the record does not so obviously disclose the expected answer as to make an offer unnecessary. Again, the ruling only deferred the question until the defendants had the case. And still further, Mr. Bicknell, the plaintiff's manager, admitted that the defendants said when they paid the seventy-five dollars that it was for the "head" which went with the machine. And, finally, the letter itself was admitted and it showed this fact.
3. When Mr. Bicknell was on the stand, counsel for the defendants cross-questioned him regarding Graham's relation to the plaintiff and the order for this surfacer. This was new matter and a subject not alluded to in his direct examination. On re-direct examination, he was allowed to testify, subject to defendants' objection and exception, that Graham had never been employed by the plaintiff to make a contract for this surfacer. In this there was no error. The defendants' theory was that Graham was the selling agent; if there was any evidence in the case tending to sustain this claim, this evidence was, on plainest principles, admissible to meet it; if there was not any evidence so tending, its admission could have done no harm.
4. Graham was a witness for the plaintiff. He testified that all he had to do with the sale of the machine was to notify Carroll that the defendants wanted a surfacer and to recommend it to them. That he made certain repairs on it and left it in apparent good condition. No evidence had come into the case to show that Graham was plaintiff's agent or that he had any authority to receive notice to take the machine away, or that he had communicated to the plaintiff or any of its officers or agents the talk he had with the defendants about the machine. The defendants then claimed the right to ask him if the defendants did not at some time notify him to take the machine away,--basing the claim on the ground that the witness had testified that the sale was made through him and that the plaintiff had ratified his acts by accepting the order and shipping the machine. The evidence was excluded, but only because it was not proper cross-examination, and therefore should be deferred until the defendants had the case. The position of the court was correct and the ruling free from error.
It was the claim of the defendants all along through the trial that Graham was the plaintiff's agent. Many of the exceptions argued before us are predicated upon the assumption that there was evidence, either offered or received which tended to establish such agency,--if not by appointment, by adoption. But this claim cannot be sustained. The only evidence of an agency by appointment, either received or offered, was such as was afforded by the acts and sayings of Graham, the alleged agent. This was not enough. Agency may be shown by circumstantial evidence; but the mere fact that one person assumes to act for another is not, of itself, sufficient to establish the relation of principal and agent. 3 Ell. Ev. § 1635. The acts and admissions of an agent in the scope of his employment are admissible against the principal. But this rule presupposes two things: That there is evidence tending to prove the agency; and that the act or admission is within its scope. "The fact of...
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