The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1894-06-22
supKEmE COURT DECISION.


Have Been n-sufted.
A remittitur was filed in the superior
enrt yesterday In the case OF H. G.
fbmezys, respondent. VS.. the American
lumber Company as appellant, suit to
recover the purchase price of logs claimed
% have been sold 10 the company. The
supreme court reverses the Judgment given
comegys and remands the case 20 the
lover court with instructions to enter
Judgment Of non-sust on defendants mo-
lion. The decision il signed by Judge
Andsrs. il concurred in by Judges Hoyt
and Stiles. and dissented to by Judge Scott.
Among the errors noted Judge Andcrs
Tnys: During the course Of the trial the
court permitted both the plaintiff and his
sssignor. Pearl, to testify over the obJec-
ton of the defendant that Melvin. when
he proposed to them 10 purchase the logs
In question, stated that he was the agent
Of the appellant and desired to buy the
logs for il. This ruling Of the court was
clearly erroneous. In no event are the
mere declarations or admissions of an al
legged agent, made out of court. competent
testimony to establish the fact of his
agency. No one can clothe himself with
power to represent another or to bind
him by his note or declaration.
An agent is but the creature of
bis principal and derives all of his power
o. such from his principal, and an agency
can only be established by showing some
admission, act or declaration of the al
Legged principal. But the fact of agency
heing one established by proper evidence,
then the acts and declarations Of the agent
done or made within the scope of his
s1ncy and while employed in or about
Axhusiness of his principal are binding
cst principal for the reason that the
~ and declarations of the agent are
Ea deemed TO be the acts and declara-
fsss Of the principal himself But this
pinciple cannot apply to declarations
which merely 60 TO show the existence OF
he agency. This distinction was obvi-
ously overlooked by the learned counsel
br the respondents, for IL Ia urged by
them In their brief that there was no
error In the ruling of the court under
consideration, because there was other
evidence In the case tending to establish
helvin's agency. and the question then
was as TO the order Of the proof merely,
which was clearly within the discretion of
the court. We concede thai it was
within the discretion of the court
TO admit such declarations and adj
missions Of Melvin In evidence as would
have been binding on the appellant, IL he
was in fact its agent, without first calling
for proof OF his agency, although we think
such practice should not be adopted ex-
eept for special reasons, but the fact is
that the testimony here complained of was
not admissible at any time or at all. Nor
90 We think the court cured the error COM
piained Of by charging the Jury generally
that the agency of Melvin could not be
proved BY his own declarations. To effect
that result the Objectionable testimony
thouid a. least have been specifically with
erawn from the consideration of the jury,
and even II that had been done ID would
SUI DC difficult TO say, under the circum-
stances, that il would have been altogether
harmless 10 appellant. The appellant, like
sEery other suitor in a court of Justice. had
aiessl night 10 insist that only competent
testimony should be adduced against IL,
sad incompetent testimony having been
introduced over its objection. the judy
ment against il should he reversed unless
ron al the facts and circumstances in
we case, including the charge of the court
70 the jury, il appears reasonably certain
hsi no injury resulted therefrom 10 the
appellant And in this case We are by no
nssns convinced that the testimony OBJ
Fesed 10 did not influence the minds Of
we Jury unfavorably TO the defendant
IT'S eontended by appellant that the
evidence on the part Of the plaintiff in the
esft below was insufficient to prove
saass Tor the Jury, and that the court
~sfeiore erred in denying its motion for
s0asuls al the close OF plaintiffs tezti-
eeay. And as We view the evidence. the
seaoa should have been granted"
An exception is also taken 10 part Of the
safss charge 10 the jury. which instrue-
ssas although 3 correct statement Of the
n proper case, were not 10 the issues
- determined by the jury.