Plumb v. Curtis

• Decision Date: 05 April 1895
• Citation: 66 Conn. 154,33 A. 998
• Court: Connecticut Supreme Court
• Parties: PLUMB v. CURTIS.

33 A. 998

66 Conn. 154

PLUMB

v. CURTIS.

Supreme Court of Errors of Connecticut.

April 5, 1895.

Appeal from court of common pleas, Pairfield county; Curtis, Judge.

Action by Lewis P. Curtis against Hanford C. Plumb. Judgment for plaintiff, and defendant appeals. Affirmed.

George P. Carroll, for appellant.

Henry T. Shelton, for appellee.

BALDWIN, J. There was no error in permitting the plaintiff to put his shop books in evidence for the purpose of proving, not only that the goods therein charged to the defendant were sold and delivered, but that they were sold to the defendant. Gen. St. § 1041, provides that, "in all actions for a book debt, the entries of the parties in their respective books shall be admissible in evidence." They are admissible as tending to show the truth of the statements entered. Entries of sales to the defendant tended to prove that such sales had been made to him. Smith v. Law, 47 Conn. 431. The statute, in its original form, was applicable only to an action peculiar to the jurisprudence of Connecticut,—that of debt on book. St. 1821, p. 93. In such a proceeding the party's books were deemed the principal and most satisfactory evidence, his own testimony being received merely as suppletory. Swift, Ev. 81; Terrill v. Beecher, 9 Conn. 344; Butler v. Iron Co., 22 Conn. 335, 360. The Practice Act, § 31, made them admissible in all actions for the recovery of a book debt. It is a legitimate exercise of legislative power to give greater effect to any particular kind of evidence than it possessed at common law. State v. Cunningham, 25 Conn. 195, 203.

The entries of the sales charged in 1890, and the testimony with respect to Simeon Plumb's statements, when he gave the first order, that he was acting for the defendant, and desired the charges made to him, and a pass book kept for him, and of the defendant's promises made in 1890 to pay for the goods then charged, and his request that the pass book might be left with him for examination, were properly received, notwithstanding the fact that such payment was admitted by the pleadings. They were evidence of the manner in which the dealings between the parties commenced, and that the defendant recognized the authority of Simeon Plumb, at one time, to act as his agent in ordering goods of the plaintiff. The plaintiff's claim was that such an agency existed in 1890, and continued unchanged till June, 1891. The evidence in question was relevant, not because it supported the plaintiff's allegations as to an indebtedness for goods sold in 1890, since his reply admitted that no such indebtedness existed, but because it tended to support a recovery for the later charges, by showing the circumstances under which the goods were sold, and the appearance of authority which the defendant had given to Simeon Plumb to buy them on his behalf. The court was fully justified in admitting proof of the declarations of Simeon Plumb at the time of the first purchases, though made in the defendant's absence, as to his right to act for the defendant, in view of the fact that the defendant recognized, the agency by calling for the pass book and paying for the goods so ordered. The jury might fairly infer from his conduct that he had authorized Simeon Plumb to make the declarations in question, for they were truly descriptive of the nature of his agency, as admitted by the defendant. As to how far, when received, they might be considered by the jury as proof of a larger agency than that which the defendant admitted, was another question, which was not brought up by an objection which related only to their admissibility.

The defendant contends further that, as these declarations could only be important as tending to show sales to a principal through an agent, neither they, nor any of the evidence relating to the agency of Simeon Plumb, were admissible under the complaint, which was for goods sold to the defendant, and made no mention of the intervention of any agent in the transaction. The rules under the practice act (rule 2, § 1, Prac. Bk. p. 12) allow the common counts to be "used for the commencement of an action, when any of these counts is an appropriate general statement of the cause of action," but provide that the defendant shall not be required to plead until the plaintiff files "a proper bill of particulars, or such further statement by way either of a substituted complaint, or of amendment, as may be necessary to show his cause of action as fully as is required in other cases; and such statement, where the demand is founded on an express contract, whether executory or executed, shall set forth the terms of the contract"; and that "where a bill of particulars, only, is filed, all the counts not applicable thereto shall be struck out by amendment." The bill of particulars filed in the present case was applicable, so far as appeared upon its face, either to the third, fourth, sixth, or ninth of the common counts. Prac. Bk. p. 60, form 85. The rule was not complied with by striking out the other counts by amendment, but no objection was taken by the defendant on that account. Under the ninth count, which was upon an account stated, it was unnecessary for plaintiff to allege the circumstances under which the indebtedness was contracted. Whether it was through the intervention of an agent, or not, was immaterial, so long as the account as rendered was accepted as correct by the defendant. As respects the other counts, it should—and, had the defendant demanded it, no doubt, would—have been specifically alleged that the indebtedness was contracted by Simeon Plumb, as agent for the defendant. Prac. Bk. p. 14, rule 3, § 1. No objection, however, was taken on this ground to the admission of any of the evidence as to the existence of such an agency. The general objection to the admission of Simeon Plumb's declarations as to the extent of his authority, made in the absence of the defendant, was evidently based on the ground that it was hearsay, and it is so treated in the reasons of appeal. It was not such as to direct the attention of the trial court to any question of variance, and that question, therefore, cannot now be raised upon it here. Rule 17, § 1; 58 Conn. 584, 26 Atl. xv.

At the close of the testimony the defendant asked that the jury might be instructed that there could be no recovery, under the pleadings, for any goods sold in 1891 on the order of Simeon Plumb, acting as or being his agent. Such an instruction was properly refused. The evidence of agency having been received without any objection on the score of variance, it was too late to ask the court, in its charge, to withdraw it from the consideration of the jury. At common law a contract made by an agent could be declared on as if made directly by the principal. The practice act laid down a new rule, but it was one purely of form. If the bill of particulars did not give the defendant such information as he deemed necessary of the nature of the claim in suit, it was his duty to move to have it made more specific. His omission to do this was a waiver of the informality. Vila v. Weston, 33 Conn. 42, 48; Nothe v. Nomer, 54 Conn. 326, 8 Atl. 134; Santo v. Maynard, 57 Conn. 157, 17 Atl. 700.

The plaintiff was allowed, against the defendant's objection, to testify that Simeon Plumb was a man of no property, so far as he knew. It was not disputed that all the goods charged to the defendant had been ordered by Simeon Plumb, and sold on credit. The plaintiff claimed that he had extended this credit to the defendant, and was justified by the circumstances in so doing. The defendant denied that Simeon Plumb had any authority to buy on his credit the goods charged in 1891, and the main controversy was as to this point. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law. The question must be determined in each case according to the teachings of reason and judicial experience. Thayer, Cas. Ev. 2, 3. "If the evidence offered conduces in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury." Insurance Co. v. Weide, 11 Wall. 438, 440. The question as to its admission or rejection addresses itself to the court as one to be answered with a view to practical, rather than theoretical, considerations. The guiding principle is well stated in Stephen's Digest of the Law of Evidence (page 36, c. 1) in these words: "The word 'relevant' means that any two facts to which it is applied are so related to each other that according to the common course of events, one, either taken by itself, or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other." The jury, in the case at bar, were to determine whether it was probable that the plaintiff, after charging all the materials furnished on the order of Simeon Plumb for the construction of three houses in Bridgeport, to the defendant, as the principal for whom Plumb acted, and for whom it was not denied that he had authority to act, proceeded to furnish like materials for the construction of five other houses in Bridgeport on the order of Plumb, and to charge them to the defendant, when he really gave credit to Plumb, and dealt with him as the only party to the transaction. According to the common course of human conduct, a merchant is not likely to continue for several months to make almost daily sales, on credit, of goods worth in the aggregate several hundred dollars, to a man who, so far as he knows, is destitute of any means to pay for them. Inglis v. Usherwood, 1 East, 515, 524; O'Brien v. Norris, 16 Md. 122. If he has been selling to him the same line of goods...