Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-02-23

tirely by. the witness. These objec4
lions were repeated in various forms,
but in substance the same, and after
the witness had concluded, motions
to strike out such evidence on the
same ground were denied.
The admission of the evidence over
objection, and the denial of the mo-
tons from the basis of the defend
ants assignments of error.
1. The first question for determi-
nation is whether it was error to ad-
NIT the testimony of the witness
Clever, and the records of his office,
showing the freight received and re-
ceipted for by the defendant. The
appellant lays great stress upon
this not being the official record re-
quired by law, being hearsay, and
not all in the handwriting of the wit
ness, and some of it made when he
was not present. Had this record
been offered in evidence and received
as book account, there might be
force to this objection. However,
on that point, there is a conflict in
authorities and it is unnecessary on
this appeal to determine that ques-
ton. In our view of the law, this
record which contained descrip-
ton of the articles received and de-
livered; also the signature Of the
defendant acknowledging the receipt
of the articles specified, and the tes-
timony Identifying the record and the
defendants signature, and describing
how it was kept and for what pur-
pose, were clearly competent to show
an admission by defendant of the re-
ceipt Of large quantities of beer. The
state was attempting to show the re-
ceipt by him, Of beer in such quanti-
ties that it could not have ben obtain
ed for personal use, and must have
been received for sale.
| The defendant did not testify, and
he offered no evidence in his own be-
half. Had he made a claim that the
records misdescribed the articles and
that they did not contain beer, he
had an opportunity to rebut the ad.
missions, and show that the. record
which he signed did not state the
facts, after being identified, and its
use and method explained, furnish.
ed at least, some evidence that the
devendant received the articles de.
Iscribed therein and receipted for BY
him.
We deem it altogether immaterial
whether the railway company's agent
himself kept the record and made the
descriptive articles, or whether he
made none of them. The signature
Of the defendant receipting for the
idiherent items as described was the
main element, and constituted this
record competent evidence as against
the defendant in SO far as it related
to merchandise receipted for by him,
Commonwealth v. Hildreth, "a Mass,
3H. The same rule applies to that
portion of this evidence where the re-
ceipting was done by johnson, the
drayman. He was duly authorized
agent Of the defendant, his author
ization being in writing, and the de-
fendant is charged with the know
ledge of the agent acquired in the
transaction of the principals business
relating to such business and the re-
ceipt for articles described as beer,
signed by Johnson, acting for the de-
PENDANT, at least furnished prima
facie evidence of the character of the
property receipted for. 12 CYC. 420;
Am. & Eng. Enc. of Law, $40, and
cases cited. Rice on Evidence, Sec.
23O.
4 's~ASSSNSA AZ NCAO Ny duy dSSut lU
reverence to the business in which
he is at the time employed, and
within the scope of his authority, Is
said to be done by the principal, and
may be proved. as well in criminal
as civil case, in all respects, as
II the principal were the actor or
the speaker. Cliquot v. U. s. 70 U.
s. Ia. NJ
When the relation of principal and
agent is established in a particular
transaction. the agents admission
may be imputed to the principal ii
the agency involves the making Of
such admission. Wharton Grim.
Ev. 695.
2. Objection was made to the cues
ton addressed to the witness Clever,
the station agent, asking him to give
dates and description Of merchan-
4