Milwaukee Harvester Co. v. Tymich

• Decision Date: 19 May 1900
• Citation: 58 S.W. 252
• Parties: MILWAUKEE HARVESTER CO. v. TYMICH et al. TYMICH v. MILWAUKEE HARVESTER CO.
• Court: Arkansas Supreme Court

58 S.W. 252

MILWAUKEE HARVESTER CO. v. TYMICH et al.

TYMICH v. MILWAUKEE HARVESTER CO.

Supreme Court of Arkansas.

May 19, 1900.

Appeals from circuit court, Prairie county, Southern district; James S. Thomas, Judge.

Action in attachment by the Milwaukee Harvester Company against W. A. Tymich and another. From a judgment on the attachment in favor of defendant W. A. Tymich, and an order denying a new trial, plaintiff appeals; and from a judgment on the merits in favor of the plaintiff against defendant W. A. Tymich, he appeals. Judgment and order on the attachment reversed. Judgment on the merits affirmed.

Plaintiff sued W. A. Tymich and Joseph Hobart, as partners under the firm name of Tymich & Hobart, on November 2, 1896, for $739, and sued out an attachment on the grounds that defendants were about to sell and dispose of their property with the fraudulent intent to cheat, hinder, and delay their creditors. Defendants answered, denying the debt, and filed an affidavit denying the grounds of the attachment. The issues thus formed were submitted to the jury. After the introduction of the evidence, the jury, under the direction of the court, returned a verdict for the defendant Hobart both upon the debt and the attachment. The issues upon the debt and the attachment as to the defendant W. A. Tymich were submitted to the jury, and the court instructed the jury to find for the plaintiff in whatever sum they may find due. The jury returned a verdict for $743.20, and dissolved the attachment. Judgment was accordingly rendered. Plaintiffs filed their motion for a new trial in this cause as to the verdict dissolving the attachment, which was overruled. Plaintiffs excepted. The motion for a new trial was on the following grounds, to wit: "(1) Because said verdict was contrary to law. (2) Because said verdict was contrary to the evidence. (3) Because said verdict was contrary to the law and evidence. * * * (5) Because the court erred in refusing to permit W. C. Holmes to testify as to statements made by defendant Tymich's son, while in the store, as to the whereabouts of his father. (6) Because the court erred in refusing to permit Holmes to testify as to the statements made by Tymich's son as to his father wanting to sell out, and that he could get things cheap, etc. (7) Because the court erred in refusing to permit plaintiffs to prove by Svantner, Jas. Dvorek, and John Peters that the defendant Tymich tried to collect claims garnished, and to discount the same from parties who had been garnished, and to show by the sheriff's return that the same had been garnished." Plaintiffs appealed to the supreme court.

Trimble & Robinson and Sam W. Williams, for Tymich & Hobart. W. E. Atkinson, for Milwaukee Harvester Co.

HUGHES, J. (after stating the facts).

We are of the opinion that the court committed no error in refusing to permit Holmes to testify on the trial of the attachment as to statements made by the son of the defendant Tymich, while in his father's store, as to the whereabouts of his father, and as to his father's wanting to sell out, and that he (Holmes) could get things cheap, etc. The son was keeping his father's store in his father's absence, but was not authorized to bind his father by any admission or any statement he might make. "The declarations or admissions of an agent are never competent evidence against his principal, nor anything he may say before or after making the contract or the doing of an authoritative act, unless it forms part of the res gestæ, or has some necessary connection with it, and is a part of the contract or act itself." Byers v. Fowler, 14 Ark. 86. Holmes'...