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John W. Hogan and Philip S. Knauer, for J. D. Furlong & Co., and afterwards added plaintiff. John A. Tillingbast, for defend to the entry the abbreviation "Agts.," and ant.

interlined the words “Prov. County Savings

Bank”; also, that he made persistent efforts DOUGLAS, J. This action was brought to collect the bill of Furlong, and only preto recover for certain plumbing work done sented it to the defendant when these efforts by the plaintiff on several buildings owned proved fruitless. All these circumstances by the defendant. There is no disagreement combine to throw great doubt upon the plainabout the performance of the work or the tiff's claim; but we cannot say that they price. The only question is whether the de conclusively overthrow his testimony, corfendant is liable to pay for it. Both parties roborated by the presumption that he would agree that the work was let to the plaintiff, naturally retain his valid claim against a under contract, through one J. D. Furlong, perfectly. responsible debtor, rather than acting as agent for the defendant; that the abandon his right and take the agent as his plaintiff knew that Furlong was acting in debtor alone. this matter as agent; and that the defend The changes in his book were evidently ant was his principal. The plaintiff claims an afterthought, and very seriously impugn that he charged the account to defendant as his veracity; but the book amounts to little principal, and treated Furlong only as agent more than a memorandum, and he may have for defendant. The defendant claims-First, considered it proper enough to correct the that credit was given by the plaintiff to Fur entries, which were carelessly made in the long alone; secondly, that the defendant set first instance. If he had thus explained his tled its account with Furlong, and credited action, he would have been more worthy him with the payment of this bill, and the of credence than when he testifies that the plaintiff, knowing the relations of the par additions were made when the entries were. ties, has so conducted himself as to estop Still, omitting the amendments entirely, we him from claiming payment of the defend only have the fact that the book account ant; and, lastly, that Furlong has paid the stands charged against the agent, and not plaintiff this bill. The jury returned a ver against the principal; and this is not condict for the plaintiff for $471.81, the amount clusive of the fact in issue. It is said by claimed, and also found specially “that ‘at Earl, J., in Meeker v. Claghorn, supra: the time the work in question was done the "The evidence should be quite clear that plaintiff did not give credit exclusively to the vendors gave exclusive credit to the Furlong." The defendant prays for a new agent of known principals, before we can trial on the grounds: (1) that the verdict hold the principals exempt from liability. is against the law and the evidence; (2) that In all cases where the principals seek excertain evidence tending to show payment emption upon the ground that the credit was by Furlong was erroneously excluded by the exclusively given to their agents, this should court; (3) that the verdict is excessive. The clearly appear, and they hare the affirmative latter ground is not insisted úpon at this to show it; the natural presumption being hearing.

in all cases that credit is given to the prin1. The first question for consideration is cipal, rather than to the agent. It is suffione of fact, viz., whether the plaintiff gave cient to say, upon this branch of the case, credit to the defendant or to the defend that there is no conclusive evidence that the ant's agent exclusively. Upon a considera- | credit was given by the vendors exclusively tion of all the circumstances of the case, we to the agent, and that they intended to look cannot say certainly that the jury erred in to him solely for their pay. It is true that deciding this question. It was properly left upon the ledger and daybook of the vendors to them to decide. Whitney v. Wyman, 101 the articles were charged to Shell, and, while U. S. 392, 25 L, Ed. 1050; Meeker v. Clag this furnishes strong evidence that they horn, 44 N. Y. 349; Hovey v. Pitcher, 13 were furnished upon his credit, it does not Mo. 191. It appears that Furlong was the show it conclusively. The plaintiff gave agent of several property owners, and was some explanation tending to weaken the efin the habit of attending to work done upon fect of this evidence, and its weight, under their several estates, and in this capacity en as the circumstances of the case, was for gaged the plaintiff to do the work in ques the referee." To the same effect see Guest tion. The plaintiff knew that the defendant V. Burlington Opera House Company, 74 was the owner of the premises, and sup Iowa, 457, 38 N. W. 158. posed, as was the fact, that Furlong was its 2. The next claim of the defendant is that agent, duly authorized to procure the work the plaintiff ought not to recover in this acto be done. He testifies that he intended tion, because his delay in presenting his bill to hold the defendant, and not Furlong, as induced the defendant to credit the agent his debtor. Against this statement is the with the amount of it in the settlement of evidence of Furlong that the plaintiff gave his account. As a matter of fact, the decredit to him, and not to the defendant, and fendant received of its agent, as a voucher the fact that in the plaintiff's journal, which to his account, a bill for this work receipted we consider to be shown by the book itself, by the agent in the name of the plaintiff. he first charged the items of the work to Without inspection of the voucher the sum

was credited to him, and the balance due from him so much reduced. It does not appear that any actual settlement, by the payment of this balance to the defendant, has ever taken place; and, if so, it is clear that, as the defendant is not bound by the statement of balances predicated upon the misrepresentation of the agent, it has only been drawn into a paper settlement, which can be revoked at its pleasure, and has suffered no real damage. But, if the settlement had been made by the payment of the balance found, we do not see how the mere delay of the plaintiff to require payment can bar his action now. What misled the defendant was the misrepresentation of its own agent, for which the plaintiff is not responsible. It is not true that the defendant thought it was not the debtor, but that it believed the statement of Furlong that the bill was paid.

The cases cited by defendant do not support the proposition it contends for. Kymer F. Suwercropp, 1 Camp. 109, holds that an undisclosed principal who has settled with his broker is liable to a vendor of goods bought by the broker, if the vendor makes demand on the principal in due season, or, in the case cited, before the stipulated day of payment. Smethurst v. Mitchell, 1 El. & El. 622, was likewise the case of an undisclosed principal whom the court held might be made liable if the plaintiff, within a reasonable time after discovering him, elected to proceed against him, but who would be discharged of all liability if the plaintiff lay by an unreasonable time and thereby induced him to alter for the worse his position toward the agent. Neither case concerns the condition of liability of a principal known to be such and to whom credit is originally given.

3. The last claim upon which the defendant insists arises as follows: Defendant expected to prove by Furlong, among other things, that he had paid this bill. At the time of the trial Furlong was absent out of the state. The plaintiff admitted that, if present, he would testify as expected by the defendant. In further support of this defense defendant offered the books of account of Furlong, which were admitted to be genuine and kept in the ordinary course of his business. Plaintiff objected to them as irrelevant, and, the objection being sustained, defendant duly excepted. He now argues that these books were admissible as the shop books of the defendant, kept by its clerk or agent, or as the books of a third party kept in the regular course of business, or to refresh the memory of Furlong. As the books are described, it is very evident that they were in no sense the books of the bank. Furlong was a real estate agent, and set down in his books debits and credits relating to that business, involving, no doubt, men. tion of his transactions with the defendant as well as with other customers. The defendant had no power or right to make or

direct entries therein. The case cited by defendant (Dow v. Sawyer, 29 Me. 119) seems, at first sight, directly in point, but on close analysis is seen to differ materially from the case at bar. The book there under consideration was a memorandum book kept by defendant's agent to record payments made by him on account of defendant for work done on defendant's mill. He seems to have been a superintendent and paymaster for the defendant. After the death of the agent the book was admitted in evidence. It is not quite clear, from the opinion of the court, whether the book was considered to be the defendant's book, kept by its agent, or the book of a third party, who was dead, and who had no apparent motive to pervert the facts recorded. As the book appeared to contain nothing but entries relating to defendant's business, it might well have been considered to be the defendant's book, and so admitted. If it were admitted as thc book of a third party, we should differ from the learned court as to its admissibility.

The rule as to the admissibility of the books of third parties is not very clearly stated by the text-writers or the courts. Without attempting to reduce the conflicting decisions to uniformity, it may be said that two general grounds of admissibility of such documents are usually referred to. Either the entry is one made against his interest by a third person, who has deceased or who is beyond the reach of oral examination, or it is the contemporaneous record of a fact which forms part of the res gestæ in which the principal fact in issue occurred, made by a person not interested in the principal fact. "There are two classes of admissible entries,” says Professor Greenleaf, “between which is a clear distinction in regard to the principle on which they are received in evidence. The one class consists of entries made against the interest of the party making them, and these derive their admissibility from this circumstance alone. It is there fore not material when they were made. The testimony of the party who made them would be the best evidence of the fact; but, if he is dead, the entry of the fact made by him in the ordinary course of his business and against his interest is received as secondary evidence in a controversy between third persons.

The other class of entries consists of those which constitute parts of a chain or combination of transactions between the parties; the proof of one raising the presumption that another has taken place. Here the value of the entry, as evidence, lies in this: that it was contemporaneous with the principal fact done, forming a link in the chain of events and being part of the res gestæ. It is not merely the declaration of the party; but it is a verbal contemporaneous act, belonging, not necessarily, indeed, but ordinarily and naturally, to the principal thing. It is on this ground that this latter class of entries is admitted; and

therefore it can make no difference, as to to make it complete, it is obvious that it is their admissibility, whether the party who not admissible under the rule referred to." made them be living or dead.” 1 Greenl. 4. It is contended, lastly, that Furlong's Ev. (15th Ed.) $ 120.

books would have been admissible as memNeither ground exists for the admission of oranda to refresh his memory as a witness. Furlong's books as those of a third party. This is true, but has no application to the Without insisting upon the fact that Furlong circumstances of the case. The books were is in being and his deposition might have not offered for that purpose, and could not been taken, it is plain tbat an entry of the be so long as Furlong was not a witness payment of money by him to the plaintiff under examination. Books or papers used is not an entry against his interest, and so by a witness to refresh his memory do not the case does not come under the first branch become primary evidence, unless the opof the rule; and it is equally clear that the posing party makes them so by cross-exampayment of this bill to the plaintiff is the ination concerning the entries contained in principal fact alleged in this defense, and them. The evidence of Furlong was before not a contemporaneous fact leading up to the court only by admission of the plaintiff the main issue. These distinctions are very as to what he would have sworn to. His clearly brought out in the case of Sypher evidence could not be extended beyond the V. Savery, 39 Iowa, 258, 262. In that case demand of the defendant and the admission it became important to show the payment of the plaintiff. The defendant asked the of a certain sum of money from Keene to plaintiff to admit that Furlong, if present, Savery. It was alleged that this payment would have sworn to the fact of payment. was made to White on Savery's account, If he had wished the plaintiff to admit that and White's books were offered to prove the Furlong, with his memory refreshed by infact. The court says: “We think the ac spection of his books, would have sworn to count is not competent evidence to establish the fact of payment, he should have made the indebtedness of defendant. Entries in that demand on the plaintiff. Then the books of account made by third persons are plaintiff might have examined the books and admissible in evidence, when it is shown made them evidence to impeach Furlong; that the party making them is dead and that but, unless this were done, the books would the entries were against his interest. Nei only be supposed to have been subjected ther fact appears in this case. It is not to Furlong's examination as aids to his memshown that White is dead, and it very clear ory. In the circumstances as they were, dely appears that the charges in the account fendant's counsel had the opportunity of were not against but in accord with his in using the books to frame bis statement of terest. The entries to the credit of Savery what Furlong's testimony would be, exactly may be regarded as against the interest of as Furlong might have used them before White; but those to his debit were clearly testifying, to make up the testimony he in his favor, or they would tend to release should give as a witness. We cannot say, him from liability if any force be given to therefore, that the court erred in rejecting them. The fact that White was charged the defendant's offer of these books. with the duty of receiving money from the The petition must be denied, and the case subscribers and paying it over to Savery remitted to the common pleas division for does not make the case out of the rule. He judgment upon the verdict. became liable on receiving the money. Payment to Savery discharged him of such liability. The entries in the account which

(24 R. I. 555) tend to show Savery's liability with equal CRANDALL V. STAFFORD MFG. CO. force relieve White of liability. They are,

(Supreme Court of Rhode Island. Dec. 22, therefore, not against his interest. But it

1902.) is insisted that these entries are admissible

MASTER AND SERVANT-FELLOW SERVANTon the ground that they are a part of the

NEGLIGENCE-INJURY-CONTRIBUTORY NEGres gestæ, or contemporaneous with the prin

LIGENCE-QUESTION FOR JURY. cipal fact done. It is true that an entry that

1. A person who, under the direction of the is of the res gestae and is contemporaneous superintendent, erects the “hanger" in a mill, with the principal fact done is admissible. on which a pulley shaft is placed, is not, while But the rule is not applicable to the fact be

doing such work, a fellow servant of an opera

tive in the mill. fore us. The principal fact done was the

2. Evidence in an action by a servant for inpayment to Savery of the money in con jury resulting from the falling of a pulley troversy. This is the very transaction itself

shaft in the mill, with which he was workiug,

examined, and held, that the question of his upon which defendant's liability is based.

contributory negligence was for the jury. It cannot be said that this fact is of the res gestæ or contemporaneous with itself. If Action by David H. Crandall against the the entry related only to circumstances con

Stafford Manufacturing Company. Heard on nected with 'e payment, to time or manner

petition of plaintiff for a new trial after a thereof, the rule might be applicable. But nonsuit. Petition granted. when it covers the whole transaction, and

1. See Master and Servant, vol. 34, Cent. Dig. $9 leaves nothing else to be proved in order

392, 393, 396, 408.

Argued before STINESS, C. J., and TIL nished the necessary sheathing for the LINGHAST and ROGERS, JJ.

trench, and the boss or foreman had neglect

ed to use it and the plaintiff had been inJohn W. Hogan and Philip S. Knauer, for

jured by reason of such neglect, the defendplaintiff. Walter B. Vincent, for defendant.

ant's contention of nonliability on the part

of the city would have been tenable, as such TILLINGHAST, J. 1. We think the trial neglect would then have been that of a felcourt erred in granting the nonsuit in this low servant. That this suggestion or dictum case. The witness John S. Grant, who erect was in accordance with the well-settled rule ed the "hanger" upon which the pulley shaft of law under such a state of facts we see no was placed, was not, in the doing of that reason to doubt. In Dube v. Lewiston, 83 work, a fellow servant with the plaintiff. Me. 211, 22 Atl. 112, which was specially The “hanger” was part of an appliance in relied on by us in support of the position the mill. It was put up under the oversight thus taken, the court held that the street of the superintendent, and was intended to commissioner discharged his duty when he be used in facilitating the doing of certain assigned to the work of digging the trench work which the defendant corporation was an experienced and competent foreman and carrying on. The duty of properly construct furnished him with suitable and sufficient ing and fastening said appliance, therefore, materials for any appliances necessary for was clearly one which the law devolved up the safe conduct of the work, and that the on the defendant as master, and it could not use and application of the materials formed devest itself of this duty by devolving it up a part of the duty of the workmen. The on another. As said by this court in Mulvey court further held that, if the commission. 5. R. I. Locomotive Works, 14 R. I. 204: er's failure to place shoring against the side "It is the duty of a master, who furnishes of the trench where the earth fell could be machinery for his servants to operate or deemed negligence, it was the negligence of work about, to see to it that it is reasonably a fellow servant. It also held that said safe. He cannot devest himself of this duty street commissioner was not required to perby devolving it on others, and, if he does form any duty in the premises which legally devolve it on others, they will simply occupy belonged to the province of the master. But his place, and he will remain as responsible that the court did not intend by said decifor their negligence as if he were personally sion to overrule or modify the well-settled guilty of it himself.” The same rule, in sub rule of law regarding the duty and liability stance, is laid down in Brodeur v. Valley of a master in cases like the one before us Falls Co., 16 R. I. 448, 17 Atl. 54; Di Marcho is evident from the rule which it then adoptv. Builders' Iron Foundry, 18 R. I. 517, 27 ed, namely: “The true test, it is believed, Atl. 328, 28 Atl. 661; Hanna v. Granger, 18 whether an employé occupies the position R. I. 507, 28 Atl. 659; Whipple v. R. R. Co., of a fellow servant to another employé, or 19 R. I. 587, 35 Atl. 305, 61 Am. St. Rep. is the representative of the master, is to be 796; Laporte v. Cook, 21 R. I. 158, 42 Atl. found, not from the grade or rank of the 519; McGar v. Natl. Worsted Mills, 22 R. I. offending or of the injured servant, but is 350, 47 Atl. 1092; McDonald v. Postal Tele to be determined by the character of the act graph Co., 22 R. I. 134, 46 Atl. 407; and being performed by the offending servant, Cummings v. Natl. Worsted Mills, 24 R. I. by which another employé is injured, or, in 390, 53 Atl. 280.

other words, whether the person whose sta2. The case is not controlled by the dictum tus is in question, is charged with the per. of this court in Laporte v. Cook, 21 R. I. 158, formance of a duty which properly belongs 42 Atl. 519. That was a case where the de to the master.” The case of Zeigler v. Day, fendant city was engaged in digging a trench 123 Mass. 152, was similar to the one just and laying water pipes therein. The trench referred to. There the plaintiff alleged a was not sheathed, and the plaintiff, while neglect on the part of the defendant to prodigging bell holes at the bottom thereof, as vide sufficient security against the caving in he was directed to do by the foreman, was of a trench which he was digging for the injured by the sudden caving in upon him defendant. But the court, in granting a nonof the bank of said trench. We held that, suit, said: “The work was committed to the in view of the circumstances which appear supervision of a skillful and competent sued in evidence regarding the plaintiff's ignor- perintendent. It required for the protection ance of the condition of the soil, the very of the men the frequent use of temporary brief time that he had worked in the trench structures, the location and erection of which, before it caved in, his ignorance of the fact as the digging progressed, was a part of the that it had repeatedly caved in before, etc., work in which the superintendent and the and in view of the further fact that nothing men under him were alike employed, and for appeared to be dangerous in connection with the preparation of which, as in case of the the trench, the plaintiff's conduct in attempt scaffold of the mason or the carpenter, the ing to do the work as directed by the boss master is not liable, unless there is someis not, as matter of law, a negligent act. thing to show that he assumed it as a duty We also suggested that if the city had fur independent of the servant's employment."

In cases like Laporte v. Cook and those ing of that countershaft dropped down for just referred to, therefore, it is evident that the want of being properly put up, and, of a different rule applies, and must of neces course, the belt was on the main shaft, and sity apply, from that which obtains in cases that drew that toward me instantly, and like the one now before us. That is to say: that twisted the other hanger off, and then In the digging of a trench, the proper mode the whole thing came at me. It was all done of doing the work and of applying the safe in an instant. Q. Tell us what happened. guards necessary for the protection of the A. Whether I tried to jump out of the way, workmen must, from the nature of the case, or whether the thing caught and knocked be left to be determined by the foreman or me down, I don't know. It was done too boss as the work of excavating progresses; quick to explain how it was done. I know and hence all that the master can reason it took me over the shaft, belt and all. Q. ably be required to do is to furnish such ap How many times? A. I know I went over pliances as may be found necessary to meet twice.”. In view of this testimony, it cannot any contingency that may arise. And, as be said, as matter of law, that the plaintiff held in Zeigler v. Day, supra, the erection of was guilty of contributory negligence in assuch temporary structures is a work in which sisting Grant in adjusting the belt. The both the foreman and those under him are well-settled rule in this state is that where alike employed,—the former simply occupy. the evidence is such that different minds, ing a higher grade than the latter in the fairly considering it, might draw different doing of the work,—and hence the fellow conclusions therefrom, the question of conservant rule applies thereto. To the same tributory negligence is one for the jury to effect are McDermott v. Boston, 133 Mass. determine. Boss v. Ry. Co., 15 R. I. 149, 1 349; Floyd v. Sugden, 134 Mass. 563; Clark Atl. 9; Clarke v. Electric Lighting Co., 16 v. Soule, 137 Mass. 380; Larich v. Moies, 18 R. I. 466, 17 Atl. 59; Elliott v. Ry. Co., 18 R. I. 513, 28 Atl. 661; and Laporte v. Cook, R. I. 711, 28 Atl. 328, 31 Atl. 694, 23 L. R. 22 R. I. 554, 48 Atl. 798. In the doing of A. 208; Swanson v. Ry. Co., 22 R. I. 122, the work in question in the case at bar, how 46 Atl. 402; Blackwell v. O'Gorman Co., 22 ever, the servant, Grant, occupied the place R. I. 638, 49 Atl. 28. of the master. In other words, he was the Plaintiff's petition for new trial granted. master in the doing thereof; and hence, if it was improperly or negligently done, and the

(24 R. I. 515) plaintiff was injured by reason thereof, he, being free from contributory negligence, is

WELCH et al. Y. GREENE, entitled to recover. The character of the act (Supreme Court of Rhode Island. Dec. 6, done by Grant devolved it upon the master;

1902.) and hence, under the rule laid down in Han REVIEW OF VERDICT-FICTITIOUS CHARAC

TER-PASSION OR PREJUDICE-NECESSITYna v. Granger, supra, and followed in all the

WITNESS-REFRESHING MEMORY-ORIGINAL subsequent cases in this court in which the MEMORANDA - REQUIREMENT -- LANDLORD

AND TENANT --- LANDLORD'S BREACH

OF question has arisen, Grant was not a fellow

COVENANTS KNOWLEDGE OF TENANT'S servant with the plaintiff in the doing of said

CLAIM-ADMISSIBILITY OF EVIDENCE. work.

1. In a case where there is no certain meas3. Whether the plaintiff was guilty of con

ure of damages, the verdict cannot be disturb

ed, as excessive, unless the amount awarded is tributory negligence in putting the belt upon So excessive, in view of the evidence, as to a moving pulley was clearly a question for show passion and prejudice. the jury under the evidence submitted, and it

2. A witness may refresh his memory from a

memorandum made by him from original memwas, therefore, error for the court to decide

oranda which had been made by him or under that question. There was undisputed evi his direction at the time the event recorded dence that it was always customary to put

occurred, and the fact that the memorandum on belts when the pulleys were moving, and

used is not the original will not exclude his

evidence. also that the plaintiff was experienced and 3. In an action by a tenant for breach of a skillful in doing such work; and it is evi covenant in a lease to keep the ceiling of a dent that no injury would have resulted to room in such repair as to prevent injury to

the tenant's goods, the landlord testified that him from putting on the belt in question, or,

he knew nothing of any claim by the tenant rather, in assisting the witness Grant, at bis on that account. The plaintiff sought to show request, in putting it on, as the evidence that the landlord was familiar with correspondshows that he did, had not the "hanger"

ence had by plaintiff with the landlord's agent,

in which the claim was made and promise give which supported the shaft given way, there

en to refer it to the landlord, and that a bill by causing the shaft to fall toward the plain for storage, afterwards presented by the landtiff immediately after the belt was put on,

lord's agent, was concocted as an offset therewhereby he became entangled in the belt

to. Held, that it was not error to compel de

fendant, on cross-examination, to testify as to and was injured. The plaintiff testified in presenting the bill for storage; the connection part, relative to the manner in which he re with the plaintiff's claim being subsequently ceived the injury, as follows: "Q. When established as indicated. you got the belt, and got it on the pulley of Exceptions from cominon pleas division. the main shafting, and the power caught it, Action of covenant by Welch & Co. against tell tbe jury what happened. A. The shaft Forrest Greene. From a judgment for plain

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