Rex Motor Car Mfg. Co. v. Dupont

• Decision Date: 18 June 1923
• Docket Number: 23162
• Citation: 132 Miss. 504,96 So. 684
• Court: Mississippi Supreme Court
• Parties: REX MOTOR CAR MFG. CO. v. DUPONT

96 So. 684

132 Miss. 504

REX MOTOR CAR MFG. CO. v. DUPONT

No. 23162

Supreme Court of Mississippi

June 18, 1923

EVIDENCE. Uncommunicated declarations by agent to third parties held inadmissible in suit on note where defense fraua.

Where the defense to a suit on a promissory note executed for the purchase price of stock in a corporation is based on alleged false and fraudulent representations made to the defendant by an agent of the corporation who sold the stock, it is error to admit testimony of statements and representations made by agents of the corporation to other parties, which were not made in the presence of and were not communicated to the defendant, and which related to sales and transactions with which the defendant was in no way connected.

HON. G WOOD MAGEE, Special Judge.

APPEAL from circuit court of Pearl River county, HON. G. WOOD MAGEE Special Judge.

Suit by the Rex Motor Car Manufacturing Company against J. E. Dupont. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Gex Waller & Morse, for appellant.

It would be useless to cite much authority in a case of this sort, because the propositions of law are so elementary that we are confident that it would be burdensome to the court to go into the matter. However, we can't refrain from referring the court to the elementary propositions as established by this as well as all other courts.

The Law. In N. O. etc., Ry. Co. v. Tyson, 46 Miss. 729 this court said: "It is error to admit testimony, which does not prove or tend to prove the issue." See also, Cross v. Levy, 2 Miss. 116.

In 2 Miss. Dig., page 139, it is said: "When a depositary of money without hire was sued for an alleged balance, due on the deposit, and he was allowed to introduce his cash book, and to prove that his clerks made false entries in it, and that they had stolen his money, it was held that this evidence was error for the reason that it was irrelevant. Cougherty v. Vanderpool, 35 Miss. 65."

In the same Volume, page 142, it is said: In a suit against several as partners, where some of the defendants deny the partnership, an application for revenue license, though made in the name of the firm, and reciting that all the defendants are partners, and sworn to by one of the parties, is, as to defendant, denying their liability, res inter alios acta, it not being made in their presence or with their knowledge. Boyd v. Ricketts, 60 Miss. 62."

"The plaintiff sought to recover moneys paid to the defendants for drafts sold by them to the plaintiff, which draft belonged to a third person to whom plaintiffs had to pay the amount thereof. To prove this fact he offered in evidence the record of the justice's court, showing the recovery of a judgment against the plaintiff for the amount of the drafts by such third person. This evidence was held inadmissible, for the reason that it was res inter alios acta. Andrews v. Kramer, 77 Miss. 171, 25 So. 156.

In 5 Miss. Dig., Page 621, it is said: "The statement of an agent has no probative value as establishing his agency. (1912) Sumrall v. Kitselman Bros., 101 Miss. 783, 58 So. 594; (1919) Gulfport, etc., Traction Co. v. Faulk, 119 Miss. 894, 80 So. 340; (1919) W. T. Rawleigh Co. v. Denham, 119 Miss. 406, 81 So. 118." "(1918) The admissions of an agent outside of court are not competent to show the fact of his agency nor the scope or extent of his powers. Reichman Crosby Co. v. Dinwiddie, 117 Miss. 103, 77 So. 906."

Brady, Deal & Hobbs, for appellee.

Appellant is much aggreived at certain testimony admitted by the trial court, but it has permitted itself to become exercised over false issues. The suit was not, and this appeal is not, between J. A. Bell and & J. E. Dupont. It is between the Rex Motor Car Manufacturing Company, by which Bell was employed, one of many agents, and J. E. Dupont. Therefore, in view of the contentions raised by appellant on the trial it was wholly proper that appellee should show the stock-selling methods employed by appellant through all of its agents in Picayune. None of these acts, once the fact of agency was established, was a side issue.

If J A. Bell representing appellant, told J. E. Dupont, appellee that the company would have between fifty and one hundred cars on the Mississippi market within six months, as he did, and then immediately went to George Braeber and S.W. McGehee, told them the same thing, and undertook to make arrangements to handle these...