David A. Burnside v. Grand Trunk Railway Company, 47 N.H. 554 (1867) - Opinion

This was a statement by Cummings long after the property had passed from his control.

It would also seem to appear to have been a matter about which Cummings had no knowledge, and that he ascertained about the bags from somebody else.

This was an unauthorized statement which cannot be used as an admission against the defendants. 1 Greenl. Ev. secs. 113, 114; Story on Agency, 134 to 139; Robinson v. Worcester Railroad, 7 Gray 92; Burgess v. Wcireham, 7 Gray 345; Bemerrit v. Meserve, 39 N. H. 521; Woods v. Banhs, 14 N. H. 101.

2. The three last counts in the declaration are too defective to sustain a judgment. They do not set forth the claim in any intelligible manner in themselves, nor by reference to the first count. The evidence to prove the special damages was all admitted upon these defective counts, as the special damage is not set forth or alleged in the first count, and the verdict of $100 was found upon this evidence. The judgment should, therefore, be arrested, as the verdict was general. Blanchard v. Fislc, 2 N. H. 398; Sawyer v. Whittier, 2 N. H. 315; Gould’s PI. ch. 10, sec. 58, and authorities there cited; Bryden v. Bryden, 9 Pick. 546.

Benton & Benton, for plaintiff.

I. Declarations of agents within the scope of their authority, and accompanying the acts they are authorized to do, bind the principal. Angelí & Ames on Corp. sec. 309. The case finds that Cummings was the general freight agent of the defendants. He was, then, the proper person to transact all business with regard to freight at that point on the defendant’s road. And it is respectfully submitted that making inquiries and search for lost or missing freight received at or forwarded to that station, would come properly within the scope of such business; and that his declarations to the owner of the freight made in connection with, and relative to, such a search, would be fully within the scope of his authority, and accompanying the act he was authorized to do. Meserve v. Conn. R. Railroad, 6 Gray 450; 1 Greenl. Ev. sec. 114, a., Red-field’s Ed.

II. The motion in arrest of judgment stands upon the alleged insufficiency of the plaintiff’s declaration, and can only be sustained by such a substantial defect as would have sustained a general demurrer. No matter of form is sufficient. Gould’s PI. ch. 10, sec. 11.

The declaration, though not skillfully and formally drawn, is still substantially sufficient, and contains, in reality, but one complete statement of the plaintiff’s cause of action, i. e., of the circumstances which constitute it; or, in other words, but one count. Gould’s PL ch. 4, secs. 2 and 3.

The last three sections of the declaration do not even attempt to state a new cause of action, or to make a new or different statement of the cause set forth in the first section, but simply explain and qualify the general allegation in the first; and it is submitted that the fact that these sections are, in form, somewhat similar to new counts, will not change the character of the declaration, for the court will look rather to the substance, than to the form of the pleading. Gould’s PL ch. 10, sec. 8.

The first question is, whether the statement of Cummings, the defendants’ general freight agent, was rightly admitted in evidence. On this point, the plaintiff’s testimony was, that he delivered the bags to him at Northumberland, about the first of August, 1862, to be carried to Milwaukee, and that not having been heard from, in April, 1863, he applied to Cummings, who still continued to be such agent, for information about them, and was told by him that he had ascertained that they were at Sarnia, at a freight depot, under a large lot of flour.

In the solution of this question, the only difficulty arises from the fact, that this statement was made after the lapse of about eight months from the time the bags were received by defendant. Had the statement been made at the expiration of a reasonable time for the delivery of the bags at Milwaukee, and the transmission of the intelligence to plaintiff of their non-delivery, it would have been admissible in evidence as being within the scope of Cummings’ agency, and while it continued in relation to this very transaction, dum fervet opus.

In Morse v. The Connecticut River Railroad Co., 6 Gray 450, it was decided that the statements of the conductor, or baggage master and station master, in relation to the loss of a trunk on a railroad, made to the owner upon inquiries by him on the morning after the loss, were admissible, upon the ground that such statements were made by them, as agents of the defendants, within the scope of their agency, and while it continued. The verdict was set aside for error in excluding this evidence. In Burgess v. Wareham, 7 Gray 345, it was decided that the declarations of a highway surveyor in relation to work done upon a highway, under a contract made with him, such declarations being made several months after the work was finished, were not admissible. The doctrine of that case was, that the statements of an agent in negotiating a contract and carrying it into execution, are-regarded as part of the res gestae, and admissible in evidence, but that after such contract has been executed, his statements are merely hearsay, and like those of any other person, and cannot affect his principal.

This is the doctrine of Demerrit v. Meserve, 39 N. H. 521, which holds, that, to make the declarations of an agent admissible, they must be within the scope of his authority, and made while the transaction is depending. Such is the doctrine laid down in 1 Greenl. Ev. sec. 113, and cases cited,* and Story on Agency, see. 137, and notes; and Fairlee v. Hastings, 10 Sumner’s Vesey 123, and notes.

In the case before us, the transaction was still depending, the goods were still in transit, and it was still within the scope of Cummings’ authority to find and forward them. Had the plaintiff, before this, in any way, put an end to the defendants’ duty to transport any farther those bags, or to deliver them to him, the case might have been different, perhaps, but nothing of that kind is stated; and, for aught that appears, the original undertaking by the defendants to carry the bags to Milwaukee still subsisted, and the agency of Cummings still continued in respect to it. So long as the duty of the defendants to transport the goods continued, the authority of the agent would continue, and so long his declarations in respect to it would be regarded as the declarations of the principal.

There are authorities which hold that the declarations of a general agent — and Cummings must be regarded as such — made at any time during his agency, are admissible against his principal, 2 Cowan’s Phillips Ev. 187, and such seems to have been the view of Tindall, C. J., in Garth v. Howard & al., 8 Bingh. 451. But, however this may be, we think it well settled that the declarations of the agent while in the execution of an act within the scope of his authority are admissible against the principal. In Mott & al. v. Kip, 10 Johns. 478, it was' decided that the declarations of a deputy sheriff to plaintiff’s attorney, made in answer to inquiries relative to an execution in such deputy’s hands, and while it was in force, were admissible, and the court put it upon the ground that the statements were made in the count of the transaction, and were to be considered as part of the act touching the execution of the writ.

The only question in the case before ns, is, whether, at the time these statements were made, the contract with the railroad was still in the course of execution, and for the reasons before suggested, we think it must be so considered. It is true, that, in November, previous to the time when the plaintiff applied to Cummings, which was in April, 1863, he had purchased barrels to transport his corn in, but there was no evidence that he had given directions to defendants not to transport the bags to Milwaukee; and in the absence of such evidence, it would be understood that the original contract to deliver the bags to Horton & Fowler, the plaintiff’s agents, was still in force. Besides, it is quite clear that the duty of the railroad to find these bags and deliver them to the plaintiff at some place, still existed, and that being the case, the agency of Cummings still continued.

The exception that the special damages claimed are not specially alleged in the declaration, appears not to be true in point of fact. It is true the declaration is informal, the statement of each item of special damage commencing as if it were a new count; but it is manifest that it was the purpose of the pleader to set them out as special damages, all constituting but one count. These allegations all assume that the cause of action is stated in the preceding part of the declaration, and do not undertake to set out the cause of action. Indeed, there is nothing to give these statements the character of separate counts but the commencement, and we do not think this ought to control the otherwise obvious purpose of the pleader.

As there was no other exception to the proof of special damages, it is too late-now to urge that it ought not to have been considered by the jury-

The exception to that evidence was specific, that no such damages were alleged; and as that turns out to be unfounded, the evidence stands as if received without objection. The only inquiry, then, is, whether there was any error in the instructions to the jury of which the defendants can avail themselves. If there is any objection, it can only be that the court did not direct the jury that these special damages, or some of them, could not be included; but the answer to that is, that no such instructions were asked for, and what were given were correct.

The truth is, that, by confining their objections to this evidence to the want of the necessary allegations in the declarations, the defendants waived all others, and as those allegations were, in fact, made, this testimony must be treated as received without objection. If, then, the defendants wished for instructions on this point, it was their duty to ask for them; and it is to be presumed the right instructions would have been given. As this was not done, it must be understood that the defendants acquiesced in the plaintiff’s claim to include these items, if properly alleged in the writ, and the absence of instructions on that point is no cause for disturbing the verdict. If, by a general exception to the charge of the judge, a party might take advantage of any omission, to notice and give proper instructions upon all and every matter appearing in the cause, it would obviously encourage a practice that would cause great embarrassments to courts of justice, and one which finds no countenance in the adjudged cases. In our own State, it is decided that if instruction is desired upon any particular point, the party must ask for it, and cannot lie by and take his chance of a verdict, and then take exception. Moore v. Ross, 11 N. H. 557, and cases; and so is State v. Haskell, 6 N. H. 359; the same views are recognized in Armstrong v. Taber, 11 Wheat. 277. In Wait v. Maxwell, 5 Pick. 219, it was held that a verdict should not be disturbed because improper evidence was admitted, and even commented upon by the judge, if no objections were made at the trial, or different instructions asked for; the court holding that it must • be considered that all objections are waived.

So in New York, in an action against a master for the negligence of his servant, it was held, on a motion for a new trial, that it could not be urged that the evidence did not establish the relation of master and servant, if the objection was not made at the trial. Ford v. Monroe, 20 Wend. 210. These decisions, we think, conform to the course of the practice in this State. Jackson v. Barron, 37 N. H. 494, and cases cited; and Essex Bank v. Rix, 10 N. H. 201, and see cases; Bank v. Keene, 45 Me. 103.