Miller & Co. v. McKenzie

• Decision Date: 14 November 1906
• Citation: 55 S.E. 952,126 Ga. 746
• Parties: MILLER & CO. v. McKENZIE.
• Court: Georgia Supreme Court

55 S.E. 952

126 Ga. 746

MILLER & CO. v. McKENZIE.

Supreme Court of Georgia

November 14, 1906

Syllabus by the Court.

Hearsay evidence has no probative value.

The declarations of an agent, when not made dum fervet opus, or as a part of the res gestae, are hearsay.

When the rules above laid down are applied in the present case the verdict as to the contested issue was unauthorized by the evidence.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by George M. McKenzie against Miller & Co. Judgment for plaintiff, and defendants bring error. Reversed.

Smith Berner, Smith & Hastings, for plaintiffs in error.

Clay & Blair and Tye & Bryan, for defendant in error.

ATKINSON J. (after stating the facts).

1. Under the view we take of the matter, the question of variance between the averments and the proof as to the $700 transaction becomes immaterial. Let the petition be construed as contended by counsel for defendant in error, and the verdict is still unauthorized by the evidence. It was necessary, under either construction of the petition, that the plaintiff should show that there had been a sale of the wheat in conformity to his order. He swore that he had given the order to sell. He did not know and did not pretend to know whether a sale had taken place. He was positive in his assertion that he had given the order to sell to the agents of the defendants at their place of business in Atlanta. This agent swore that the order had never been executed. It is said that this evidence is to be disregarded because it is palpably hearsay, as the agent was in Atlanta and the order was to be executed in Chicago, and what was or not done was manifestly beyond his knowledge, except as derived from information imparted by others. Let this evidence be treated as hearsay and the testimony of the agent entirely eliminated. The plaintiff contends that the sale is proved by the declarations of the agents in charge of the Atlanta office; one of whom admitted that the several amounts claimed were correct, and the other saying that he had investigated the matter, and was satisfied that the amounts were correct and ought to be paid, and that he would see that they were paid, or he would no longer remain in the employ of the defendants. The declarations in each instance were after the transaction was complete, and not in any sense made during its progress. They were not made dum fervet opus. They were not...