La Rue v. St. Anthony & Dakota Elevator Co.

• Court: South Dakota Supreme Court
• Writing for the Court: CORSON, J.
• Citation: La Rue v. St. Anthony & Dakota Elevator Co., 54 N.W. 806, 3 S.D. 637 (S.D. 1893)
• Decision Date: 04 April 1893
• Parties: LA RUE v. ST. ANTHONY & D. ELEVATOR CO.

54 N.W. 806

3 S.D. 637

LA RUE v. ST. ANTHONY & D. ELEVATOR CO.

Supreme Court of South Dakota

April 4, 1893

Syllabus by the Court.

1. The statements, representations, or admissions of an agent, to be admissible in evidence to bind his principal, must have been made at the time of doing the act he is authorized to do, and must have been concerning the act he was doing, either while actually engaged in the transaction or so soon thereafter as to be in reality a part of the transaction and constitute a part of the res gestae.

2. When an agent of an elevator company has purchased wheat, and received it into the elevator, where it is mingled with other wheat in such elevator, his statements, declarations, or admissions made subsequently, to a third person, as to the party from whom the said wheat was purchased, the parties who delivered the same, and the number of bushels delivered, are not admissible in evidence to bind his principal, in the absence of evidence that he was specially authorized to make such statements or admissions, or evidence of a general custom that such agents possessed such authority.

Appeal from circuit court, Marshall county; A. W. Campbell, Judge.

Action by John S. La Rue against the St. Anthony & Dakota Elevator Company to recover the value of wheat mortgaged to plaintiff and sold to defendant by the mortgagor. There was judgment for plaintiff, and, defendant's motion for a new trial being denied, it appeals. Reversed.

John H Perry, for appellant. J. H. McCoy and H. R. Turner, for respondent.

CORSON J.

This was an action brought by the plaintiff, as mortgagee, to recover the value of certain wheat alleged to have been delivered by one Henry J. Dove, mortgagor, to and received by the defendant. It is alleged in the complaint that said Dove executed to the plaintiff a chattel mortgage, in which was included, among other personal property, all the wheat grain, and other crops that should be raised on a certain quarter section of land, described in the mortgage, during the years 1887, 1888, and 1889; that the mortgagor raised upon said land, during the year 1887, 1,200 bushels of wheat which, under the terms of said mortgage, the plaintiff was entitled to have delivered to him on the 1st day of October. 1887; that on or about said 1st day of October the mortgagor wrongfully and fraudulently sold and delivered to said defendant 700 bushels of said wheat, of the value of $400; and that the defendant received the same, and mixed it with other wheat in its elevator, with knowledge of plaintiff's right thereto; and that the plaintiff demanded said wheat of the defendant, and also the value or proceeds of the same, but the defendant refused to deliver the same or pay the value thereof. And the plaintiff demands judgment for $400, interest, and costs. The answer was a general denial, except as to 200 bushels, of the value of $120, which the defendant admits it purchased of said mortgagor, and which it was thereafter informed was raised upon the land described in the mortgage. The only evidence introduced on the part of the plaintiff to prove the amount of wheat delivered to the defendant raised upon said land was that of the plaintiff, who testified that he followed one load of wheat, of about 50 bushels, from the land described to the elevator of defendant; the testimony of a witness, Tuck, that he drew one load of the wheat to the elevator; and the evidence of W. L. Hinkley, which, with the objections and exceptions, was as follows: "W. L. Hinkley, sworn, and testified on part of plaintiff as follows: 'I knew Henry J. Dove when he resided in Marshall county, about the 1st of October, 1887. I went to the elevator of the defendant in this case at Amherst, this county. I went there to get some wheat that was sold there by Dove. (Defendant objects. Witness answers:) I went there after wheat. Dove owned the wheat, I suppose. Mr. Dunn was the agent of the elevator company, the St. Anthony & Dakota Elevator Company, at Amherst, at that time. Question. Did you ascertain from Mr. Dunn the amount of the Dove wheat that had been left at that elevator? (To which question the defendant objected, for the reason that the same is incompetent, irrelevant, and immaterial, and for the further reason that no statement made by Mr. Dunn at that time would be binding upon this defendant. The court overruled said objections, and to which ruling the defendant then and there excepted.) Answer. Yes, sir. Q. You may state in what manner you ascertained the amount of wheat within the elevator at that time, or had been deposited of that Dove wheat. A. I learned from his books and from him. (To which answer the defendant moved to strike out that portion "learned from him" and all the balance, because it is wholly incompetent. The statement of Dunn would not bind the company, and the books would be the best evidence of their contents. The court denied the motion, and to which ruling the defendant then and there excepted.) Q. You may state, if you know, what amount of wheat--of the Dove wheat--had been delivered to the elevator of the defendant in this case, at Amherst, at any time. A. I have got it in a book here. The amount-- (The defendant objects, for the reason that it is not the best evidence, which objection the court overruled, and to which ruling the defendant then and there excepted.) A. 449 bu. and 20 lbs. He [[Dunn] told me it was the Dove wheat. I have the names of the parties who took the wheat to the elevator. Took the names from the books of the elevator. A. C. Pratt drew 48 bu. and 20 lbs.; H. B. Taylor, 38 bu. and 20 lbs.; A. C. Pratt, 48 bu.; L. Smith, 41 bu.; C. A. Tuck, 45 bu. and 20 lbs.; A. C. Pratt, 46 bu.; H. B. Taylor, 38 bu. and 20 lbs.; A. C. Pratt, 55 bu.; L. Smith, 44 bu.; L. Smith, 50 bu.,--in all 450 bu. and 20 lbs. This is the book I had with me, and I made the figures on October 1, 1887. This wheat at that time was worth 48 cents per bushel. It was poor wheat. I think the wheat checks were delivered to A. Sherin. I won't say for sure. I think so. It is so long ago.' On cross-examination, witness testified as follows: 'I took the names and amounts from his book. He had a book in which he took the names of the parties that drew the wheat and the amount."' The case was tried before a jury, and, at the close of the evidence, the defendant moved the court to instruct the jury that in no case could they return a verdict in favor of the plaintiff for a greater sum than $120. This instruction the court refused to give, and submitted the case to the jury, who found a verdict for the plaintiff for $300.55, upon which judgment was rendered in favor of the plaintiff. A motion for a new trial was made and overruled. Numerous errors are assigned, but, in the view we take of the case, it will only be necessary to consider the errors assigned as to the admission of the evidence of Hinkley, and the refusal of the court to instruct the jury as resquested.

Under the allegations in the complaint and denials in the answer it was incumbent upon the plaintiff, in order to entitle him to recover of the defendant for the value of more than 200 bushels of wheat, to establish by legal evidence that a greater amount of wheat, raised upon the land described in the mortgage, was delivered to and received by the defendant. It will be observed that, independently of the testimony of Hinkley, the evidence...