Price Produce & Commission Co. v. Inter-Mountain Ass'n of Credit Men

• Decision Date: 10 February 1927
• Citation: 253 P. 854,43 Idaho 540
• Court: Idaho Supreme Court
• Parties: PRICE PRODUCE & COMMISSION COMPANY, a Corporation, Respondent, v. INTER-MOUNTAIN ASSOCIATION OF CREDIT MEN, a Corporation, Appellant

253 P. 854

43 Idaho 540

PRICE PRODUCE & COMMISSION COMPANY, a Corporation, Respondent, v. INTER-MOUNTAIN ASSOCIATION OF CREDIT MEN, a Corporation, Appellant

Supreme Court of Idaho

February 10, 1927

PRINCIPAL AND AGENT - EVIDENCE - ERRONEOUS INSTRUCTION ON IMPEACHING EVIDENCE-STATUTORY METHOD OF IMPEACHING WITNESS OBLIGATORY.

1. Where B. mortgaged its store and stock to I., and L. was placed in charge as manager and bought goods for the store held that I., being sued for price thereof, as bearing on the issue of whose agent L. was, could introduce the minute-books of B., showing employment of L. by B. as manager.

2. One suing mortgagee of store for price of goods bought, for the store by L., its manager, having shown, for purpose of proving that L. was mortgagee's agent, that the bank account of the store was carried in mortgagee's name mortgagee could introduce testimony to explain why bank account was so carried.

3. Where P. testified that L. made a certain statement, and L denied that he did, and L., on cross-examination, was asked if, at a certain time and place, in the presence of certain persons, he made such statement, and answered that he did not, and no attempt to show that he did was then made, giving an instruction on the theory of impeaching testimony having been introduced was error.

4. C S., sec. 8036, as to method by which party may impeach own witness should be substantially followed.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Geo. W. Edginton, Judge.

Action on account for goods sold and delivered. Judgment for plaintiff. Reversed and remanded.

Cause reversed and a new trial granted. Costs awarded to appellant.

Wm. P. Hemminger and B. W. Davis, for Appellant.

Evidence of the facts tending to show true relationship of an alleged agent are admissible to prove the question of agency. ( Rosnagle v. Armstrong, 17 Idaho 246, 105 P. 216; Hallack-Sayre-Newton Lbr. Co. v. Blake, 4 Colo. App. 486, 36 P. 554; Pharr v. Gall, 108 La. 307, 32 So. 418; Schmidt v. Packard, 132 Ind. 398, 31 N.E. 944; Davis v. Benedict, 49 Neb. 119, 68 N.W. 398; Scull v. Skilton, 70 N.J.L. 792, 59 A. 459; Callihan v. Washington Water Power Co., 27 Wash. 154, 91 Am. St. 829, 67 P. 697, 56 L. R. A. 772.)

A party is bound by the testimony of his own witness and cannot impeach the testimony of such witness in the absence of any showing of surprise or fraud, nor can impeaching questions be asked for the purpose of discrediting a witness when no proof is offered to support the questions asked. (C. S., sec. 8036; State v. Fowler, 13 Idaho 317, 89. P. 757; Boeck v. Boeck, 29 Idaho 639, 161 P. 576; State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L. R. A. 716.)

The court cannot properly pick out any instruction and lay undue stress upon it. Instructions must be applicable to the facts. (Gwinn v. Gwinn, 5 Idaho 271, 290, 48 P. 295; 14 R. C. L. 780, and cases cited.)

The evidence is insufficient to support the verdict. ( Merchants' National Bank v. Nichols & Shepard Co., 223 Ill. 41, 79 N.E. 38, 7 L. R. A., N. S., 752; Pease v. Finch, 3 Cal.App. 371, 85 P. 657.)

Harry Holden, for Respondent.

Whatever evidence has a tendency to prove the agency is admissible, even though it be not full and satisfactory, as it is the province of the jury to pass upon it. So if evidence has first been introduced tending to prove the agency or to make out a prima facie case thereof, the admissions and declarations of the alleged agent, if otherwise competent, may then be shown, and the whole case be passed upon by the jury. (South & North Ala. R. R. Co. v. Henlein, 52 Ala. 606, 23 Am. Rep. 578; Morrison v. Whiteside, 17 Md. 452, 79 Am. Dec. 661; National Mechanics' Bank v. National Bank, 36 Md. 5; York Co. Bank v. Stein, 24 Md. 447; Henderson v. Mayhew, 2 Gill (Md.), 393, 41 Am. Dec. 434; Central Pennsylvania Tel. & S. Co. v. Thompson, 112 Pa. 118, 3 A. 439; Mechem on Agency, bottom page 76, sec. 106.)

It was quite apparent to the trial court that witness LaCoste was a hostile witness to the plaintiff, and the rule is that in such cases greater range is given in the examination of such witness by the person calling him than would otherwise be permitted. (C. S., sec. 8036.)

The court did not err in refusing to allow the witness Scheckel to explain to the jury the circumstances of entering into the agreement and the taking of the chattel mortgage. The agreement being in writing was the best evidence as to why it was taken, as well as the object and purpose thereof; there being no latent ambiguities therein calling for explanation by extraneous testimony, hence no explanation was either necessary or admissible. The same is true of the chattel mortgage. (Davis-Calyx Drill Co. v. Mallory, 137 F. 332, 69 L. R. A. 973.)

BUDGE, J. Wm. E. Lee, C. J., and Taylor and T. Bailey Lee, JJ., concur. GIVENS, J., Dissenting.

OPINION

BUDGE, J.

The Bowers-Schweitzer Company, Ltd., a corporation, owned and operated the Golden Rule store of Rigby. On December 30, 1921, the company gave a chattel mortgage on its stock of goods, wares and merchandise, furniture and fixtures, to the Inter-Mountain Association of Credit Men, appellant herein, the mortgage providing that the company might continue to buy and sell merchandise in the usual course of retail trade, accounting to the association for the proceeds from the sale thereof, and such proceeds to be applied in reduction of the mortgage debt. On the same day the mortgage was executed the parties entered into what is termed an extension agreement whereby the association was to make an effort to obtain the consent of the creditors of the company to an extension of time arrangement for the payment of their various claims against the company, for which the association was to receive a commission, and the company agreed, in the further conduct of its business, to make purchases from interested creditors and to pay cash therefor.

The Price Produce & Commission Company, respondent herein, was one of the creditors of the company, and some months after the execution of the mortgage and extension agreement, to wit, September 7, 1922, it signed and acknowledged an assignment of the amount of its then existing claim against the company to the association, for the purpose of collection, the association being authorized thereby to enforce payment by legal proceedings, in its own name or in any other manner it deemed proper, etc.

In February, 1922, one W. H. LaCoste was placed in the store at Rigby as manager and continued its business, including purchases of merchandise from respondent, and made payments thereon by cash and by check. The bank account of the store was kept in the name of the association and checks were signed "Inter-Mountain Asso. of Credit Men, by Wm. H. LaCoste, Manager," the notation "Bowers-Schweitzer Co., Ltd., General Merchandise, Wm. H. LaCoste, Manager," appearing across the checks.

In March, 1924, respondent filed its complaint in the district court, alleging that appellant association was indebted to it for goods sold and delivered subsequent to the time of the execution of the mortgage and extension agreement, the action being based upon the theory that during the period covering the transactions of respondent with the Golden Rule store for the amount herein claimed to be due, the business was operated by the appellant association through LaCoste as its agent. The contention of the association was, and is, that the business was at all times under the management and control of the Bowers-Schweitzer Company, and that LaCoste was the agent of the Bowers-Schweitzer Company in whatever dealings he had with respondent.

The case is here on an appeal by the association from a judgment for respondent based upon a verdict in its favor for the amount claimed. The assignments of error involve the admission and rejection of evidence, instructions given and refused, and the sufficiency of the evidence to sustain the verdict.

Appellant complains of the refusal of the trial court to admit in evidence the minute-book of the Bowers-Schweitzer Company which, appellant claims, showed the employment of LaCoste by the Bowers-Schweitzer Company as its manager. In this we think the court erred, the pivotal question being whether or not in the purchase of the goods LaCoste was the agent of the Bowers-Schweitzer Company or the agent of appellant. This evidence was properly admissible as a circumstance to be considered in determining for whom LaCoste was acting as agent.

It is also insisted that the court erred in refusing to allow the introduction of testimony to explain why the bank account of the Golden Rule store was carried in the name of the Inter-Mountain Association of Credit Men. This was also error, since the court had admitted, and, we think, properly the bank statements and checks drawn in payment of indebtedness, incurred by the Golden Rule store, and appellant was entitled to have before the jury any and all transactions carried on by LaCoste that had a tendency to establish the fact of the agency of LaCoste and for whom he was acting at the time he purchased the goods the value of which was sought to be recovered by this action. It is difficult to perceive any sound reason for admitting the checks and bank statements in evidence and excluding evidence in explanation of the reason why the account was carried in the name of appellant association, since it would have a tendency to throw light upon the question directly involved,...