Oelrichs v. Ford

Bowie, C. J., dissented, and delivered the following opinion: These cases, dépending in a great measure upon the same leading facts, and the same general principles, have been argued, and will be considered together. They present questions of great interest to the commercial community. The first exception in each, is to the admission of certain letters and telegrams to and from a supposed agent, Mr. Bell, to the plaintiffs, and entries of a deceased clerk of Bell, to show that the contract sued upon, which was made in the name of Bell with the defendants, was made by- him ⁵¹¹ as agent of tlie plaintiffs, before the agency was proved “aliunde.” Tlie second exception in Ford’s case, and third in Artz’, are to the refusal of testimony offered by the defendants, tending to show they gar-e exclusive credit to the supposed agent, Bell, who dealt “suo jure,” and did not disclose his principals; such evidence being offered to show the plaintiff had no right of action. The third exception in Ford’s case, and fourth in Artz’, are to the rejection of testimony offered by the defendants, of a special usage, existing between a certain class of merchants, and particularly between the appellants and the supposed agent, Boll, which annexed incidents to the contract and governed and controlled it.

The fourth exception in Ford’s, and fifth in Artz’ second case, arise on an instruction given by the Court at the instance of the plaintiff, presenting the same propositions covered by the preceding exceptions. The second and sixth exceptions in Artz’, caso, are peculiar to that, relating to the admissibility of certain witnesses, which will he considered separately. The contracts declared upon are memoranda in writing, dated “Baltimore, 31st October 1855, and 24th November 1855, respectively,” in the following form, varying only in date and sums: “For and in consideration of the sum of one dollar, the receipt whereof Is hereby acknowledged, we have this day purchased from John W. Bell and agreed to receive from him, from the 10th to the 20th days of January next, at his option, 1000 barrels of Ohio Super flour, and 1000 barrels Howard- Street Super flour, we paying for the same at the rate of §>9 per barrel, on the day said flour is ready for delivery.” Signed by the defendants, “Oelriehs & Lurman.” To prove those contracts were made by Bell, therein named as agent of the plaintiff's, (the appellees,) they offered in evidence certain letters from the plaintiffs to Bell, and from Bell to the plaintiffs, dated Baltimore 81st Octo ⁵¹² ber 1855, and the other from the plaintiffs to Bell, dated New York, Nov. 1, 1855, and certain entries on the day book of Bell, in the hand writing of a deceased clerk of said Bell: To the admissibility of which, as proper and competent testimony for the purpose for which they were offered, (it not having been shown that Bell’s testimony could not be procured,) the defendants objected, but the Court overruled the same and permitted it to go to the jury, to which the defendant excepted. The memorandum or contract being in the name of a third person, not a parly to the suit, the first link in the chain of proof, was evidence of the agency of the person, with whom the contract purported to be made, before the-act of that person could confer a right of action on the plaintiff.

The letters and entry excepted.to, are only admissible as declarations or admissions in writing, of a party to the contract, or as part of the “res gestee,” or transaction which was-the subject in controversy. . Whether the testimony excepted to were declarations or admissions, or “res gestee” of a party to the contract, depended upon the fact of the existence of the relation of principal and agent, between the. plaintiff and Bell. “ Where the acts of the. agent will hind the principal, there his representations, declarations and admissions, respecting the subject matter, will also bind him, if made at the same time, and constituting part of the “res gestee.” They are of the nature of original evidence, and not of hearsay; the representation or statement of the agent in such cases, being the ultimate fact to be proved, and not an admission of some other fact. 1 Greenleaf’s Ev., sec. 113. Story on Agency, secs. 134, 137. The exception to the evidence is, that it is not proper and competent for the purpose of proving that Bell was the agent of the plaintiff, it not being shown that Bell’s testimony could not be procured.

Written and verbal declarations of an agent, when admitted as “res gestee,” are regarded in the nature of original evidence and not hear ⁵¹³ say, because they are assumed to be the acts of the principal. The admissions bind him only when they are made during the continuance of the agency “dum servei opus.” Greenleaf’s Ev., sec. 113. They are verbal acts indicating a present purpose or intention, allowed with the view of illustrating or explaining something equivocal. They are not used to prove the authority of the declarant or writer, when that is in question.

That authority must be presupposed, admitted or established before such declarations could be received, otherwise they would be “res inter alios acta.” Their admission is founded on the legal identity of the agent and principal. Id., sec. 114. Where the evidence is offered as a mere fact, which is connected with the matter in dispute, and not to affect the party otherwise than as the actual existence of the facts affects the nature of the transaction itself, then, although it was a transaction between others, yet, as a mere fact and part of the res gestae, it is evidence. 1 Stark. Ev., 52.

Kolb vs. Whitely, 3 G. & J., 198 . The ultimate fact to be proved in tbis instance, was not whether such letters were written or such entries made, but wbetber a contract made in the name of Bell, referred to in those letters, or entries, was made on behalf of the plaintiff. The term hearsay is used with reference to that which is written, as well as to that which is spoken, and in its legal sense denotes the kind of evidence which does not derive its value solely from the credit to he "given to the witness, (or writing,) hut rests also on the veracity and competency of some other person. 1 Phil. Ev., 185. 1 Greenleaf’s Ev., 99. “It is uniformly held incompetent to establish any specific fact, which, in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge.” These letters and entries still rested on the veracity of another or other persons who were not sworn. “That this species of testimony supposes something hotter which might he adduced in the particular case, is not the sole ground of its exclusion Its intrinsic weakness, its in ⁵¹⁴ competency to satisfy the mind as to the existence of the fact, and the frauds which may be practised under its cover, combine to support the rule, that hearsay evidence is totally inadmissible,” per Marshall, C. J. Queen vs. Hepburn, 7 Cranch., 290, 295.

The application of these principles is forcibly illustrated in a series of decisions in this State. Among the first of these, is the case of the City Bank of Baltimore vs. Bateman, 7 H. & J., 104 , it was proposed to prove what.the president of the bank, an acknowledged agent of the defendant for some purposes) said to a sub-officer of the bank as to a particular bag of dollars. The.general rule is explicitly, although incidentally, declared to be, “that where an agency is sufficiently established, the acts and declarations of the agent, within the scope of his authority, are to be considered as the acts and declarations of the principal, of which evidence may be given.” . In Buckmyer vs. Whiteford, 1 Gill, 127 , the plaintiff sought to prove his legal interest in the cause of action (a dishonored draft) by proving a letter written by himself to the cashier of the bank, through which it had passed for collection. .It was net proved that the letter was written on the day it bore date.

Waiving this objection, the Court said: “We cannot distinguish between the statements reduced to writing in this letter, and the same statements by the same persons at the same time and under similar circumstances, made verbally.” * * * “If the person, to whom the letter was addressed, had been called to prove the appellee (the plaintiff below) had made to him the same declarations verbally, it would have been in direct violation of that admitted rule of evidence, which prohibits a party from testifying in his own case; and in this case the facts show, that it was made evidence in despite of another principle, which requires the best evidence the nature of the fact affords.” Id., 149 . In Harker vs. Dement, 9 Gill, 16 , an action of trover for the conversion of certain slaves, it was proposed to prove that ⁵¹⁵ Briscoe, tbe supposed agent, at tbe time of taking the property, stated lie came and took the slaves by the authority of the plaintiff. The Court held: “No proof aliunde was offered to show that the plaintiff had invested Briscoe with. authority to sell these slaves, and it is a clear principle, that even if Briscoe had been introduced as a witness, tbe fact of his authority could not have been established by his own declarations.” In support of the last proposition, the case of James vs. Storkey, 1 Wash. C. C. Rep., 330 , is referred to.

Washington, Justice, in Blight vs. Ashley, 1 Peters Cir. Ct. Rep., 21, said: “There are certainly some cases where the declarations, or letters of an agent, are proper evidence, and others where he must he examined, and his letters are not evidence if he be alive. The distinction rests upon the principle’, that the best evidence must be produced. If the object is to prove a fact, the agent is the proper person to prove it, and Ms evidence is better than his declarations. If Ms letter contains an acknowledgment of a fact, it is not as good evidence of the fact as proof given by himself.

But if the object Is to prove what were the motives or inducements for a man to contract with the agent, what were the statements .made by him, his letters or conversation are proper evidence, not of the facts -stated in them, but that such inducements and statements were made. The earliest English decisions are in accordance with those of our own Biale. In Masters vs. Abraham, 1 Esp. Rep., 375, the question was, which party was to find bags for the carriage of hark sold on delivery.

To prove the defendant had agreed to furnish the bags, the plaintiff proved the bark had been sold by one Eyre a broker, and produced the letter from Eyre, who was at that time in the box as a witness. It was insisted on the one hand, that Eyre should he questioned as to the facts, and the letter should not be produced; on the other, that Eyre was employed by the defendant who was therefore bound by Ms acts, and his letter was evi ⁵¹⁶ deuce against his principal. Lord Kenyon said that, as agent, he would admit evidence of what he had done on account of the defendant, but that should be learned from himself, not his letter. The case of Langhorn vs. Allnutt, 4 Taunton, 516, Lord Mansfield, upon the question of the admissibility of the letters of the plaintiffs’ agents,-held: “It is impossible to find any principle upon which they can be received.” * * * “If the circumstances had arisen at Exeter or London, there would have been no question; no one would have thought of offering letters of a person written at Exeter as receivable in evidence here, and if that is the rule with respect to transactions which take place in England, how can we differ it with relation to the distance at which the transaction takes place.

There is no known principle, of law according to which the circumstance of an agent, residing abroad, makes it practicable to give a letter in evidence, which could not be received if the agent lived in England. There is a mode of examining witnesses abroad by commission, though it is tedious and expensive, but notwithstanding those inconveniences, we cannot substitute this for it to the same effect.” Vide Kahl vs. Jansen, 4 Taunt., 571. Chief Justice Tindall, commenting on this species of evidence, says: “It is dangerous to open the door to declarations of agents, beyond what the cases have already done.' The declaration itself is evidence against the principal, though not given on oath. It is made in his absence, when he has no opportunity to dispute or correct it by any observation or by any question put to the agent, and it is frequently before the Court and jury after a long interval of time.

Evidence of such a nature ought always to be kept within the strictest rules to which the cases have confined it.” Garth vs. Howard, 8 Bing., 453. There is much force in the distinction urged by the appellants’ counsel, between the proof of agency against a principal, and proof of agency by the principal. In the former instance, the evidence, must consist mainly of acts, ⁵¹⁷ admissions, declarations, conduct or correspondence, tbe actual modo of creating tbe agency being unknown to tbe plaintiff; in tho latter, the plaintiff in proving the agency, is proving his own acts; he is in possession of all the information necessary to establish the fact. Hence, the best evidence in the nature of the case should be required.

The party’s admission may be given in evidence against him, but not for him. Letters are blit declarations in writing: if offered in evidence to show a course of dealing, from which agency might he presumed, they would he admissible, their genuineness being proved, provided the're was no better evidence to be adduced. 'Where the correspondence is confined to a single transaction, which is tbe subject of suit, limited to one letter on eacb side, and the agent is not shown to be beyond the reach of tho tribunal in which the suit is pending, such letters of themselves have nono of the moral tests of truth, and to admit them would, in tho language of this Court, before cited, “violate two cardinal rules of evidence, that no man should be a witness in bis own cause, and that tbe best evidence in tbe nature of the case should be produced.” Tbe preponderance of authorities, especially in this