Reynolds v. Davison

Stewart, J., delivered the opinion of the Court. Some question is made in the first exception in this appeal, as to which party the responsibility belongs, for the reading by the jury of the memorandum made by the witness Cook. The appellants insist that the memorandum was offered to the jury by the appellee, who on the contrary disavows any design to make it his testimony. To our apprehension of the questions involved, as presented by the record transmitted, which must govern this Court in reviewing the case, it is not material to inquire into the fret whether the memorandum was offered by the one side or the other, or was inadvertently inspected by the jury.

Assuming that it was offered by the appellee, the memorandum is of such a character as not to prevent him from ⁶⁶⁷ introducing the testimony objected to in the first and second exceptions of the appellants. We agree with the Court below in its first instruction, as to its effect that “it does not specify any term of renting, and cannot, upon its face, contradict the testimony of Mr. Cook, when he states that the term was for one year.” Neither does it sustain Mr. Cook. It is entirely silent as to any term of renting, and the appellee was not estopped thereby. Being equivocal, the introduction of the testimony of the appellee is not obnoxious to the rule, if otherwise applicable, that Cook’s declarations, in violation of his instructions as.special agent of the appellants were not admissible.

We find no error in the ruling of the Court in the first and second exceptions. The second prayer of the appellants, in their third exception, presents the question as to the necessity of notice being required from the appellee as tenant, upon the theory, that the renting was but for one year, although Cook, the agent of the appellants, may have rented the house for two years. The assumption of the prayer that Cook was authorized to rent for one year, does not negative his authority to rent for two years, and if he had authority to rent for two years, it would not follow that he could not rent for one year. He might rent for one or two years, and whether the renting would be binding upon the appellants would depend upon his authority; but the prayer submits no question as to the extent of Cook’s authority.

It does not say or leave to the jury to find that his authority was to rent for one year only. The prayer was properly refused. The third prayer of the