Standefer v. Aultman & Taylor Machinery Co.
| Decision Date | 02 January 1904 |
| Citation | 78 S.W. 552 |
| Parties | STANDEFER v. AULTMAN & TAYLOR MACHINERY CO.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from Bosque County Court; B. J. Word, Judge.
Action by John W. Standefer against the Aultman & Taylor Machinery Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.
H. S. Dillard and Robertson & Robertson, for appellant. N. J. Wade and Burgess & Burgess, for appellee.
Appellant bought from appellee certain threshing machinery, and instituted this suit to recover damages for an alleged breach of warranty of the same. It appears from appellant's first bill of exceptions that while he was upon the witness stand testifying in his own behalf he offered to testify that J. W. Brown, the state agent and manager in Texas for appellee, came to Bosque county, and, after making an ineffectual effort to make the machinery operate properly, admitted to witness that "the thing wasn't any good, and was a worthless outfit; that it was a hurried-up job, and was not the machinery he had represented it to be to plaintiff; and that it was not the machinery plaintiff ordered, but that the machinery plaintiff had ordered was torn up on the road in a railroad wreck." This testimony was excluded upon the objection that it was "hearsay, and the declarations of said Brown are not binding on the defendant, the same appearing to have been made by said Brown after the signing of the order for the machinery." This ruling was error. Not only was Brown shown to have been the general state agent and manager for appellee—its alter ego—in this state, but the admission was made at a time when the transaction between the parties was still pending. The transaction in part was contemporaneous with the admission. The contract of purchase and sale contemplated that the appellee should, in case of necessity, send an expert to set the machinery in operation. This it had been called upon to do, and was in the act of doing, when the admission was made. Brown, the agent, was engaged at the time in an act in furtherance of the transaction concerning which he spoke, and his statements should have been admitted. Cooper Grocery Company v. Britton, 74 S. W. 91, 7 Tex. Ct. Rep. 408.
The same witness offered to testify that the machinery in question was worn out and old when he got it. This, too, was excluded as the opinion of the witness. The testimony had shown that appellant had been farming for about 30 years, and that during that time he had worked around threshers, and that he had run a horse-power thresher for 10 years in McLennan...
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