McPherson v. Pinch

• Decision Date: 13 December 1898
• Court: Michigan Supreme Court
• Parties: MCPHERSON v. PINCH ET AL.

77 N.W. 321

119 Mich. 36

MCPHERSON v. PINCH ET AL.

Supreme Court of Michigan

December 13, 1898

Error to circuit court, Eaton county; Clement Smith, Judge.

Action by Samuel A. McPherson against Benjamin W. Pinch and another. There was a judgment for plaintiff, and defendants bring error. Reversed.

Huggett & Smith, for appellants.

Powers & Stine, for appellee.

GRANT C.J. (after stating the facts).

Plaintiff offered the lease in evidence, except the agreement upon the back, to which defendants' counsel objected. It was received under exception. The latter agreement was subsequently introduced. The alteration was a material one and neither before the lease was offered in evidence, nor afterwards, was there any competent evidence to show that Mr Beecher had authorized Mr. Pinch to change the lease. If the case rested upon this, the objection would be fatal, not only to the admission of the lease in evidence, but to the right of recovery against Beecher. There was, however, evidence of ratification, so that the objection becomes a technical one and relates only to the order of proof.

2. The court, in its instruction, left the question of authority to the jury. There was no evidence of original authority. Mr Pinch, a witness for the defendants, testified that he had no such authority. On cross-examination he was asked if, at the time the change was made, he did not state in the presence of certain persons that he had such authority from Beecher. This he denied. Plaintiff then introduced witnesses to impeach this statement. While this impeaching testimony would have been competent to discredit the witness, especially if there had been other testimony of authority, it could not be used by the jury to prove the fact of agency. It was no more competent for that purpose than it would have been if offered as independent testimony of the agent's declaration. It is elementary that the declarations by an agent are incompetent for that purpose. The court should have so instructed the jury, and should also, as requested, have eliminated from their consideration the question of authority. It is true that there was no intention on the part of plaintiff and Pinch to release Beecher, but such was the legal effect, unless he ratified the change.

3. It is urged that there was no evidence of ratification. There was evidence that Beecher held himself out to the public, by bill heads, as a proprietor; that he...