Oskamp v. Gadsden
| Decision Date | 11 June 1892 |
| Citation | 52 N.W. 718,35 Neb. 7 |
| Parties | CLEMENS OSKAMP ET AL. v. JAMES GADSDEN |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before CLARKSON, J.
AFFIRMED.
Isaac Adams, for plaintiffs in error:
Gadsden's testimony is irrelevant, and hearsay or derivative. (Stevens Dig. of Ev., art. 62.) To hold Gadsden's testimony competent is contrary to public policy, for the following reasons:
(a.) Since it was repetition of the language of another, that language might not have been correctly repeated, either through original misapprehension, subsequent failure of memory, or willful misrepresentation.
(b.) The statements testified to were made by a person who was neither under the obligations of an oath, nor subject to cross-examination respecting accuracy or veracity.
(c.) It would be to introduce a new and distinct exception to the doctrine excluding hearsay evidence from judicial investigations, and one based upon a different foundation from the established exceptions to this doctrine. The operator at Fremont was not the plaintiff's agent. The principle to be applied here is the same as in case of a message transmitted by telegraph, where the original, as against the sender, and the one by which the sender is bound is the message as received. (Ayer v. W. U. Tel. Co., 79 Me. 493; Tel. Co. v. Shotter, 71 Ga. 760; Durkee v. R. Co., 29 Vt. 137; Saveland v Green, 40 Wis. 431; Morgan v. People, 59 Ill. 58; Howley v. Whipple, 48 N.H. 488.) The ruling now complained of goes farther than Sullivan v. Kuykendall, 82 Ky. 483, in that it permits testimony of what Gadsden said to the operator when Gadsden was not in a situation to know whether the operator repeated his message as given or not.
Richmond & Legge, contra:
The testimony of Gadsden is the best evidence, and is admissible on the grounds of agency. There are stronger reasons for holding the operator at Fremont the agent of both parties than in the case of Sullivan v. Kuykendall, 82 Ky. 483, for in that case the operator was at the station at one end of the line, and in the case at bar the operator repeating the message was at an intermediate point and acted as interpreter for both parties. Viewing the operator at Fremont as the agent of defendant Gadsden, it is clear that she was his agent to repeat to plaintiff only the message which he delivered to her, and that he would not be bound by any message which she, as the employe of the telephone company, saw fit to deliver. (Gray, Telegraphs, sec. 105.)
Plaintiffs in error brought suit in the court below to recover damages for the alleged breach of contract by the defendant in his refusing to deliver a quantity of hay claimed to have been purchased by them from him. The jury returned a verdict for defendant, upon which judgment was entered.
In 1888 plaintiffs were engaged in the city of Omaha in the flour, feed, grain, and hay business. Defendant resided at Schuyler, and had about 150 tons of baled hay which he desired to sell. Prior to the middle of April of that year plaintiffs and defendant had some correspondence about the purchase and sale of this hay, but no contract was entered into at that time. On May 1, 1888, defendant sent the following letter to plaintiffs:
In answer to the above plaintiffs wrote defendant as follows:
"OMAHA, May 2, 1888.
Mr. James Gadsden, Schuyler, Neb.--DEAR SIR: Answering yours of the 1st. The market seems to be glutted now with hay. Have bought some at $ 7.75 on track since we bought that of yours. If you want to sell now and mean business, we will give you $ 8.25 per ton on track here, if it is all like the cars we had, but we do not leave this offer open longer than Saturday, but we prefer acceptance by wire, as we are figuring upon 800 tons at a trifle better price. Sample car now coming, and if we get that all, have got to crowd the market here. Have about 140 tons bought now, and would not want yours at any price with that large lot.
On May 4 defendant called at the telephone office in Schuyler and requested the operator to call up plaintiffs, as he desired to talk to them. Plaintiffs have a telephone in their office and Mr. Haines, one of the firm, answered the call, but owing to the condition of the atmosphere the line was not working well, so that the parties were unable to communicate directly with each other. The telephone operator at Fremont, an intermediate station between Omaha and Schuyler, proposed to and did, transmit defendant's message to plaintiffs and repeated their answer to the defendant. The entire conversation was carried on through the assistance of the operator at Fremont, she repeating the message of each party. It is agreed that a contract was entered into at that time by telephone, but there is a conflict in the evidence as to its terms. The plaintiffs introduced testimony tending to show that defendant sold his entire lot of hay at $ 8.25 per ton on track in Omaha, to be shipped two car loads per day. On the other hand, the testimony of the defendant goes to show that plaintiffs' proposition contained in their letter of May 2 was not accepted by the defendant, but that the contract was for only two car loads. Two car loads of hay only were shipped to and received by plaintiffs. Subsequently defendant brought an action against plaintiffs to recover for said two car loads of hay, in which Gadsden recovered the full amount claimed, which judgment plaintiffs in error have paid. The burden was upon the...
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