Milwaukee Harvester Co. v. Tymich

• Citation: 58 S.W. 252,68 Ark. 225
• Parties: MILWAUKEE HARVESTER COMPANY v. TYMICH. TYMICH v. MILWAUKEE HARVESTER COMPANY
• Decision Date: 19 May 1900
• Court: Supreme Court of Arkansas

58 S.W. 252

68 Ark. 225

MILWAUKEE HARVESTER COMPANY v. TYMICH.

TYMICH v. MILWAUKEE HARVESTER COMPANY

Supreme Court of Arkansas

May 19, 1900

Appeals from Prairie Circuit Court, Southern District, JAMES S. THOMAS, Judge.

STATEMENT BY THE COURT.

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.

Judgment affirmed.

Trimble & Robinson, for Tymich & Hobart.

The court erred in the admission of testimony that was immaterial and concerned facts not set up in the pleadings. 29 Ark. 500; 41 Ark. 393; 30 Ark. 612; 25 Ark. 570; 13 Ark. 88; 7 Ark. 516. It was also error to allow witness Griffith to refer to the balance sheet in testifying. McKelvey, Ev. 319. The court erred in giving the first, second and fourth instructions asked by appellee. The cause of action, if any was proved, was entirely different from that set up by the pleadings, and a dismissal of the complaint was the only remedy. Pore. Remedies, § 554; 2 Rice, Ev. 661; Newman, Pldg. 723; Green's Pldg. & Pt. § 475; Baylies, Code Pldg. 324; 2 Comst. 506; 88 N. Car. 95. The court erred in instructing the jury to "return a verdict for the plaintiff in any amount they may find due." Const. Ark. art. 8, § 23; 37 Ark. 164; ib. 239; 37 Ark. 580; 35 Ark. 146; 33 Ark. 350; 36 Ark. 451; 34 Ark. 369; 34 Ark. 373. It was error to refuse instruction number two asked by defendant. Pom. Remedies, § 553; Baylies, Code Pldg. 324.

W. E. Atkinson, for Milwaukee Harvester Company.

There was no error in the court's rulings upon the testimony of witness Griffith, or upon the instructions noticed in brief of appellant. Appellant Milwaukee Harvester Company, contends that the court erred in its rulings upon the evidence and instructions.

Trimble & Robinson and Sam. W. Williams, in reply.

Parol evidence is admissible to show a waiver of performance or other matter modifying the contract before breach, and subsequent to the making of it. 52 Ark. 11; 53 Ark. 215; ib. 743; Chit. Cont. 105. The court erred in excluding evidence, as to, the titles of plaintiff, the previous course of dealing and the good faith of defendants, on the question of whether the agent's deviation from their orders amounted to a conversion of the principal's property. Story, Ag. §§ 85, 118, 141, 193, 237, 333. Conversion must be proved before the tort can be waived. 2 Ark. 512; 10 Ark. 211; Story, Ag. 224; 47 Ark. 533. Appellant was guilty of no negligence. Whart. Neg. § 534. That was a question for the jury. 25 Ark. 74; 35 Ark. 602; 49 Ark. 182; 54 Ark. 159; 52 ib. 368; 57 Ark. 429.

OPINION

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 declaration or admission 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 gestae, or has some necessary connection with it, and is a part of the contract or act itself." Byers v. Fowler, 14 Ark. 86. Holmes' testimony as to what the son said his father wanted to do would have been hearsay. The son himself was a competent witness. State Bank v. Wooddy, 10 Ark. 638; Sadler v. Sadler, 16 Ark. 628.

The court committed, error in refusing to permit the plaintiff to prove that the defendant Tymich tried to collect claims from persons who had been garnished in the action, and that he offered to give receipts for payment antedating the garnishment. True, this was subsequent to the affidavit for and issuance of the attachment. The affidavit for the attachment stated that the defendants were about to sell and dispose of their property with the fraudulent intent to cheat, hinder and delay their creditors. Trying to collect from persons garnished in the action, with an offer to receipt for payments of a date prior to the date of garnishment, was a circumstance that should have gone to the jury for what it was worth, and it was error in the court to exclude the proof of it, for which the judgment on the attachment is reversed, and said cause No. 3818 is remanded for a new trial.

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