Opinion
(January Term, 1873.)
1. The contents of a writing, which if it ever existed, has been lost or destroyed, and which can not be found after diligent search, may be proved by parol.
2. What an agent says in the Courts of doing an act in the scope of his agency, characterizing or qualifying the act is admissible as part of the res gestae. But if his right to act in the particular matter in question has ceased, his declarations are mere hearsay, which do not affect the principal.
3. The power to make declarations or admissions in behalf of a company as to events or defaults that have occurred and are past can not be inferred as incidental to the duties of a general agent to superintend the current dealings and business of the company.
4. To establish the weight of 19 bales of cotton burned on defendant's railroad, it is competent for a witness to state the average weight of the lot of 33 bales, of which the burned bales were a portion, and thus fix the weight of the 19 bales by approximation.
5. There is an exception to the general rule against hearsay evidence, by which a matter of general interest to a considerable class of the public, may be proved by reputation among that class: Therefore, it is competent for a witness to state the price of cotton, from information received through commercial circulars, prices current and correspondence and telegrams from his factor.
6. The by-laws of a corporation are not evidence for it against strangers who deal with it, unless brought home to their knowledge and assented to by them.
APPEAL from Moore, J., at July (Special) Term, 1871, of MECKLENBURG.
(113) Wilson and Bailey for appellants.
Dowd, contra.
The plaintiffs sued the defendants, before the change in our system of pleadings, in CASE, declaring against the Company as a common (108) carrier for an overcharge of freight, and for the nondelivery of nineteen bales of cotton, which were put upon the defendant's road. Verdict for plaintiff. Defendant appealed.
The case comes up on exceptions by defendants for the admission of evidence.
Exc. 1 is not sustained. The contents of a writing, which if it existed, has been lost or destroyed, and which cannot be found after diligent search, may be proved by parol.
Exc. 2. The plaintiffs gave evidence to prove that they had delivered to the defendants thirty-three bales of cotton to be carried from Chester, S.C., to New York, and that Wilkes was general superintendent of defendants' road. They were then allowed to give in evidence that Wilkes had said that nineteen bales of the cotton had been burned on 22 May, 1866, at Harrisburg station, on the defendants' road. This conversation was after the alleged burning, but it does not appear how long afterwards, except that it was in the same year.
What an agent says in the course of doing any act in the scope of his agency, characterizing or qualifying the act, is admissible as part of the res gestae. For this purpose the possession of property for the principal is an act, and what the agent says while in possession, characterizing his possession, or characterizing (114) any act then being done to the property, is admissible, 1 Green. Ev., 113.
But if his right to act in the particular matter in question has ceased, his declarations are mere hearsay, which do not affect the principal, Ibid. Cases in support of these propositions may be found in abundance with but little industry. See Williams v. Williamson, 28 N.C. 281; Howard v. Stutts, 51 N.C. 372, and R. R. Co. v. Brooks, 57 Penn., 339.
These general principles cover the present case. When the declarations of Wilkes were made the property had passed from his possession, and had been burned in the course of transportation, it may be, some months before. He was not engaged in any act as general agent, which his declarations qualified or explained. They purported to give an account of an event which had passed. Neither were they distinct objects of proof, having a value as his declarations, apart from his agency; their whole value is as admissions which he was authorized by the company to make for it.
Two exceptions have been asserted to the general rule. The first in the case of a conductor or baggagemaster, whose duty it was assumed to be to answer inquiries concerning missing baggage if made in due time. Moore v. R. R., 6 Gray (N. H.), 450. If it had appeared in evidence in that case that it was the duty of the conductor not only to answer inquiries concerning baggage in his possession, or as to its being in his possession or not, but also as to how and when baggage not in his possession had been lost or damaged, the decision could not be questioned. But it may be doubted whether that duty was properly implied from his employment. See Bank v. Steward, 37 Maine, 519. The cashier of a bank told a surety to a note which had been discounted by the bank that it had been paid, whereby the surety was induced to release property which he held to indemnify himself, when in fact the (115) note had not been paid. The declarations of the cashier were held inadmissible. Surely, if in any case the duty of answering inquiries could be implied from the employment, it would have been in this, and it was so held in Bank v. Wilson, 12 N.C. 485.
The second exception contended for is in the case of a president or general agent of a company, whose declarations respecting any business of the company, it is said, must be considered within the scope of his agency. The only authority cited for this is R. R. v. Blake, 12 Rich. Law, 634. Greenleaf says the decision is questionable.
The power to make declarations or admissions in behalf of a company as to events or defaults that have occurred and are past, cannot be inferred as incidental to the duties of a general agent to superintend the current dealings and business of the company. No such power is expressly given by the by-laws of the defendants' company, and a general power so unusual and so unnecessary in the ordinary business of a company must require a clear and distinct grant. This exception is sustained.
Exc. 3. The witness testified that he weighed the whole thirty-three bales of cotton and knew the total weight of the nineteen bales said to be lost. That the bales differed in weight very little. Defendant excepted. This mode of arriving at the weight of the lost bales was not exact, but it was as near an approximation as could be arrived at under the circumstances. It was open to contradiction by defendant, who may be presumed to have known the weight of the bales as well as plaintiff did. This exception is not sustained.
Exc. 4. It was agreed that if plaintiff were entitled to recover anything on account of the lost cotton the measure of damages was the value of the cotton in New York at the time when it ought to have arrived there, less the expense of transportation, etc. The plaintiff (116) in testifying said, that he only knew the value in New York by accounts of sales received from his factors informing him of sums placed to his credit, being the proceeds of sales, by telegrams, circulars and correspondence. His testimony was objected to, but received, and he stated the price in New York at the time mentioned. There is an exception to the general rule against hearsay evidence by which a matter which is of general interest to a considerable class of the public may be proved by reputation among that class. 1 Green Ev., s. 127. It is on this ground that reputation in a family is received as evidence of pedigree. Morgan v. Purnell, 11 N.C. 95; and public reputation as evidence of marriage (except in certain cases); Moffitt v. Witherspoon, 32 N.C. 185; Archer v. Haithcock, 51 N.C. 421; of character, solvency, State v. Cochrane, 13 N.C. 63; of the ancient name of a town, Toole v. Peterson, 31 N.C. 180, etc. These last could not in general be proved in any other way. And so with regard to the price of a commodity at a certain time and place; a single sale would be slight evidence, for it might be under exceptional circumstances; whereas the result of all the sales of the day, or of a period shortly before or after, embodied in a reputation among dealers in the article, is the best evidence which the nature of the case admits of. The reputation thus formed and circulated by telegrams, commercial circulars and the prices current in newspapers, is such evidence as is acted on without hesitation by all dealers in their most important transactions. One who deals in the particular commodity must be regarded in the same light as a scientific expert, whose opinions are admissible, although they are partly derived from books of science, which are not admissible. Best on Evidence, s. 346. It would be against the ordinary principles on which the rules of evidence are founded to reject such evidence. This exception is not sustained. (117)
Exc. 5. Supposing that there was evidence that Ghio was an agent of the defendants; the evidence of the contract made with him was clearly competent. His own representations that he was agent, would by themselves, amount to nothing. But the fact that the cotton was received by defendants at Chester, and that its transportation was begun was some evidence of his agency. Whether the declarations of Wilkes as to Ghio's agency were admissible, would be governed by the principles already stated, which it is unnecessary to report.
Exc. 6 was abandoned by defendants.
Exc. 7 raises to questions of law.
Exc. 8. The by-laws of the company enact that no contract shall be binding on the company unless ratified or approved by the President or Board of Directors. It is evident that this was not intended to apply to the ordinary contracts for freight and passage, which, from their nature and number, could not be so ratified, but only to contracts beyond the usual business of the company. Besides, the by-laws of a corporation are not evidence for it against strangers who deal with it, unless brought home to their knowledge and assented to by them. Angel Ames' Corp., s. 359, page 380. This exception is not sustained. As the instructions of the Judge were not excepted to, it is unnecessary to notice them. Besides, nearly all the questions which could be raised on them are passed on in this opinion.
PER CURIAM. Venire de novo.
Cited: McComb v. R. R., 70 N.C. 180; Fairley v. Smith, 87 N.C. 371; Branch v. R. R., 88 N.C. 575; Suttle v. Falls, 98 N.C. 395; Leak v. Covington, 99 N.C. 565; Southerland v. R. R., 106 N.C. 105; Rumbough v. Improvement Co., 112 N.C. 752; Egerton v. R. R., 115 N.C. 648; Williams v. Telephone Co., 116 N.C. 561; Craven v. Russell, 118 N.C. 566; Darlington v. Tel. Co., 127 N.C. 450; McEntyre v. Cotton Mills, 132 N.C. 600; Avery v. Stewart, 134 N.C. 291; _________, 140 N.C. 153; Ives v. R. R., 142 N.C. 138; Moseley v. Johnson, 144 N.C. 270; Younce v. Lumber Co., 155 N.C. 241; Gazzam v. Ins. Co., Ib., 341; Styles v. Mfg. Co., 164 N.C. 377; Robertson v. Lumber Co., 165 N.C. 6.