Taplin & Rowell v. L. B. Harris
| Decision Date | 09 May 1914 |
| Citation | 90 A. 956,88 Vt. 15 |
| Parties | TAPLIN & ROWELL v. L. B. HARRIS |
| Court | Vermont Supreme Court |
November Term, 1912.
GENERAL ASSUMPSIT. Pleas, the general issue and payment. Trial by jury at the December Term, 1910, Caledonia County Butler, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepted. The opinion states the case.
The death of the defendant being suggested, judgment is affirmed as of the date it was rendered by the county court.
Cook & Norton for the defendant.
Robert W. Simonds and J. Rolf Searles for the plaintiffs.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.
MUNSON
The plaintiffs were dealers in lumber, and had on hand in 1904, in Wheelock and Burke, a quantity of lumber known as box boards. Iphus and Lucius Gordon were at that time engaged in the manufacture of lumber at Lyndonville under the name of Gordon Brothers. The defendant is an uncle of the Gordons, and was then cashier of the Lyndonville National Bank. The suit is brought to recover for box boards delivered at the mill of Gordon Brothers, which the plaintiffs claim were bought by Lucius Gordon, acting as defendant's agent.
The delivery of the lumber commenced in June, 1904, and continued until February, 1905. The defendant was absent on a European trip from August twentieth until Thanksgiving day. The plaintiffs had no talk with him about the lumber until after his return. On the second day of December plaintiff Taplin saw him in the presence of Lucius Gordon, and after some conversation the defendant wrote, signed and delivered to Taplin a writing addressed to the plaintiff firm, which reads as follows: "My understanding of the agreement between you and the Gordon Bros. is that I shall stand bound to you to pay for the box boards, out of the proceeds of the boxes, when finished, at the rate of $ 10. per thousand delivered at their factory in Lyndonville, as counted in." This is followed by the word "accepted," with the signatures of Gordon Brothers and Taplin & Rowell. According to the plaintiff's book, the admissibility of which is questioned, nearly two-thirds of the lumber sued for had been delivered when this writing was given. Defendant's counsel construe the writing as an undertaking regarding future deliveries, and the defendant so characterized it in his testimony. Plaintiffs' counsel treat it as referring to the agreement under which the previous deliveries had been made. The court left it for the jury to say what agreement was intended, and to this the defendant excepted.
It is apparent that the writing is not one that could be construed by the court and be made conclusive of the defendant's liability. Its language is capable of different constructions. It may refer to the arrangement under which the preceding deliveries were made, and amount to an acknowledgement of previous liability. It may refer to an arrangement which the defendant supposed was then being made. Its construction must depend in part upon the circumstances surrounding its execution and the knowledge which the parties had of them.
The defendant excepted to certain instructions of the court regarding the effect to be given to the writing,--the consideration of which will be deferred until the case has been more fully presented in connection with other questions. The plaintiffs recovered the amount of their claim, and the defendant moved that the verdict be set aside for want of evidence to sustain it. It is now urged in support of this claim that there was no evidence tending to show an undertaking on the part of the defendant to pay the plaintiffs more than the money which came into his hands, and no evidence tending to charge him with any liability on account of the lumber which came from Burke. The first of these objections will be considered now.
In making out their case the plaintiffs called Lucius Gordon and the defendant. The defendant testified that he had no talk with Gordon about this matter until after his return from Europe. Gordon testified that before the trade for the lumber was closed he had a talk with the defendant about it, but plaintiffs failed to get from him any positive evidence of an authority to purchase on defendant's credit, and the only statement of that character came from plaintiff Taplin's testimony as to what Gordon communicated to him. With reference to this situation it is suggested in plaintiff's brief that there is evidence that Gordon obtained some authority from the defendant and told Taplin what that authority was, and that the testimony of Taplin, received without objection, may be used to show the scope of that authority. It is certain that a party cannot, against his objection, be charged with an agency on the statements of the supposed agent made out of court. Prouty v. Nichols, 82 Vt. 181, 72 A. 988, 137 Am. St. Rep. 996. Whether the plaintiffs are entitled to any benefit from these statements because of the defendant's failure to object to them will appear later.
It is clear that the testimony of Gordon tends to show that some arrangement to secure plaintiffs for the price of the lumber was entered into between himself and the defendant and communicated to Taplin. The claim of the plaintiffs is that Harris became unconditionally holden for the price of the lumber, and that the lumber was to be charged to him when delivered, and be paid for when the shooks were sold. We think it cannot be said that there is anything in the testimony of Gordon as to what passed between him and Harris that fairly tends to sustain this claim. Gordon's testimony regarding the negotiations tends to show that the understanding was that the plaintiffs should be paid for the lumber from the proceeds of the box shooks as sold; that the avails of the sales were to pass through Harris' hands at the bank, and that he was to see to it that the part belonging to the plaintiffs was sent to them. But Gordon's testimony regarding the conduct of the business shows that shooks from the plaintiffs' lumber and from other lumber were shipped in the same car; that the checks coming from the plaintiffs' lumber were deposited in Gordon Brothers' account the same as other checks; that there was no way Harris could tell what checks came from the plaintiffs' lumber except by notice from Gordon Brothers, and that no such notice was ever given or asked for. On the other hand it is to be noticed that the writing which the plaintiffs accepted, and claim to relate to the lumber previously delivered, contains nothing inconsistent with Gordon's version of the understanding.
Other features of the evidence should be referred to, as bearing upon the positions taken by the parties in their testimony, and upon their understanding of the situation at the time the writing was executed. Gordon testified that this lumber was manufactured as it came in, in a very short time, and that Harris knew it was being manufactured into shooks. Harris testified that he did not know that Gordon Brothers were in the box business until after his return from Europe. Taplin testified that he was probably in Lyndonville every month that summer; that it was his wish to see Harris, but that he made no special effort to do so; that the day the writing was signed he found Gordon in the yard at the mill, but did not notice about the lumber; that he had talked with Gordon about whether they had got any of the lumber manufactured, and that he did not think any of it was manufactured until fall. He had received no pay on the lumber at the time the writing was given. He afterwards received from Harris two payments as his share of the proceeds of two subsequent shipments.
Taplin testified in direct-examination, in substance, that on the occasion when the writing was given he told Harris that they had been delivering box boards at Gordon Brothers' mill and charging them to him, and that before they made any arrangement Gordon told them that he, Harris, was to pay for them; that Harris replied, "all right, what kind of a writing do you want?" that witness said he thought Harris had better write something for him to take, as something might happen to him; and that Harris sat right down and wrote the paper. In cross-examination Taplin said the writing did not exactly embody the agreement he made with Gordon--that it varied from it regarding the matter of payment; that Harris wrote it to suit himself and that witness didn't pay any particular attention as to how he was going to pay, except that he was going to pay as fast as he got it out of the box boards; that he took the writing because he thought it was better to have something from him--took it to show that he was consenting to its being charged to him. It is not necessary to give special consideration to Taplin's version of this interview as evidence bearing upon the nature of the defendant's undertaking, in view of the disposition to be made of another question respecting his testimony.
The question presented is regarding the use of Taplin's testimony as to what Gordon told him that Harris had agreed to. It is said in Boville v. Dalton Paper Mills, 86 Vt. 305, 85 A. 623, with reference to an exception to the charge, that the evidence referred to in the charge came into the case without objection, and that it was not error for the court to make use of it. The situation here is this. The testimony came in without objection. The question of agency was submitted upon the whole evidence. No exception was taken to the charge in this respect. No distinction is made in the defendant's brief between the testimony of Taplin and that of Gordon. So the only question is whether Taplin's testimony is evidence tending to establish the agency. The law does not recognize it as legitimate evidence, but it...
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