"{\"id\": \"2349739\", \"name\": \"Walsh, Leonard & Jackson, v. Jason C. Pierce\", \"name_abbreviation\": \"Walsh v. Pierce\", \"decision_date\": \"1840-01\", \"docket_number\": \"\", \"first_page\": \"130\", \"last_page\": \"138\", \"citations\": \"12 Vt. 130\", \"volume\": \"12\", \"reporter\": \"Vermont Reports\", \"court\": \"Vermont Supreme Court\", \"jurisdiction\": \"Vermont\", \"last_updated\": \"2021-08-10T19:24:48.507310+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Walsh, Leonard & Jackson, v. Jason C. Pierce.\", \"head_matter\": \"Walsh, Leonard & Jackson, v. Jason C. Pierce.\\nDepositions read in a case in the county court, without objection, cannot afterwards be objected to, even during the trial.\\nNor can depositions, which are decided by the county court to be competent evidence, notwithstanding certain specified objections, be after-wards objected to on other grounds.\\nIn such cases, after depositions have been read, they become a part of the files in the case, and if the case comes to this court, upon exeptions, the depositions come with it, and, in actions of book account, when it becomes necessary again to refer the case to an auditor, such depositions may be used as evidence before him, by either party.\\nA general agency, not of a character necessarily required to be in writing, may be proved either by the general course of dealings between the parties in regard to the subject matter, or by subsequent recognition. How far it is necessary to produce, on trial, writings conferring or limiting the authority of an agent.\\nThis was an action of book account, brought from the county court to this court, at the January term, 1839, by exceptions to the decision of the county court accepting the report of auditors and rendering a judgment thereon for the plaintiff. The judgment of the county court having been reversed by this court, the cause was again referred to audiditors, who, at the present term, report;\\u2014\\n\\u201c That the parties, having been duly notified, appeared be-' \\u201c fore them on the 23d day of December, A. D. 1839, and \\u201c having submitted their evidence and allegations, the audi- \\u201c tors find that the first bill of goods charged in the plaintiffs\\u2019 \\u201c account, under date of Aug 13, 1832, were purchased of \\u201c the plaintiffs in the - name and for the account of defend- \\u201c ant, by one Hiram Pierce, who assumed to be the agent of \\u201c the defendant, and, by order of said Hiram, the goods were \\u201c directed and forwarded to Jason C. Pierce, at Ogdens- \\u201c burgh, N. Y., where the said Hiram was in charge of a \\u201c store, doing business in the name and ostensibly for account \\u201cof the defendant; that the residue of the goods charged, \\u201c were directed and forwarded in like manner, upon written \\u201c orders of the said Hiram and other persons employed in \\u201c the store at Ogdenburgh, all in the name of the defend- \\u201c ant\\n\\u201c The auditors further find, that the-first bill of goods was \\u201c purchased, as aforesaid, by said Hiram in person, and that, \\u201c on that occasion, he exhibited to-the plaintiffs a writing \\u201c purporting to be signed by the defendant, empowering him \\u201c to purchase upon the responsibility of defendant, and \\u201c that the goods were delivered, and the defendant de- \\u201c bited therefor upon the plaintiffs\\u2019 books, upon the faith of \\u201c said Hiram\\u2019s representations and the said writing, but that \\u201c said writing was not specially addressed to the plaintiffs nor \\u201c delivered to them by said Hiram, and the same is not, and \\u201c has not been within, their control or knowledge. The said \\u2022\\u201c writing was not produced at the trial, nor was evidence re- \\u2018\\u2018 received to show its character or purport.\\n\\u201c The auditors further find, that about the 25ih March, \\u201c 1833, the plaintiff, Leonard, called upon thhe defendant at \\u201c St. Johns, for a payment upon the account, and that the \\u201c defendant then delivered him, in part payment thereof, \\u201c promissory notes to the amount of two thousand dollars, \\u201c without making any objection to the account, or raising \\u201c any question as to the fact, or nature, of his liability to pay \\u201c the same, though the payment was demanded as of his own \\u201c proper debt. 7\\n\\u201c The auditors further find, independently of the writing \\u201c shown to the plaintiffs by said Hiram, that the plaintiffs \\u201c gave credit directly to the defendant, and that he was ori- \\u201c ginally debited upon their books for all the goods charged \\u201c in their account.\\n\\u201c They also find, that in February, 1835, the plaintiffs received $1062,19, and in September, 1835, $1157,10, \\u201c and in December, 1835, $919,82, which sums were cre- \\u201c dited in the plaintiffs\\u2019 account, and were received of one \\u201c David A. Graham, who claimed to be the assignee of the \\u201c goods and credits of the store at Qgdensburgh, in behalf \\u201c of defendant, and that the account mentioned in the de- \\u201c position of Samuel M. Woodruff, herein after referred to, \\u201c was a copy of the plaintiffs\\u2019 account, and similar to the ac- \\u201c count returned by the auditors. All the facts, above stated, \\u201c were found from the testimony of the plaintiff, Leonard.\\n\\u201c The auditors further find, from the deposition of Samuel M. Woodruff, that on the 23d day of April, 1834, the \\u201csaid Woodruff, as agent of the plaintiffs, exhibited to the \\u201c defendant a statement of plaintiffs\\u2019 account, corresponding \\u201c substantially, (with the exception of a charge of cash, $60, \\u201cunder date of Jan. 19, 1836,) with the account herewith \\u201c returned, in which the defendant was debited directly to \\u201c the plaintiffs ; that the defendant admitted the account to \\u201c be just and true, and promised to pay the same in a short \\u201ctime; that the defendant then gave to Woodruff three \\u201cpromissory notes, two for $1000 each, and one for $500, \\u201c as collateral security for the payment of the account, and \\u201c to be applied, if paid, to reduce the balance thereon due. \\u201c The deposition of the said Woodruff was objected to by \\u201c the defendant, upon the ground that it was not taken to be \\u201c used before the supreme court; but,inasmuch as it was tafe- \\u201c en to be used in this cause and had been used before the \\u201c auditors appointed by the court below, the auditors over- \\u201c ruled the objection and admitted the deposition.\\n\\u201c The auditors find, upon the testimony of plaintiffs and \\u201c said Woodruff, generally, independently of the writing \\u201c shown to the plaintiffs, by said Hiram, that all the goods \\u201c charged in the account of the plaintiffs, were purchased of \\u201c them for account and by authority of the defendant and that \\u201c the defendant is primarily liable and justly chargeable \\u201c therefor.\\n\\u201c The auditors further find, that the letter hereto annexed, \\u201c marked C., was written to defendant by plaintiffs, and de- \\u00a3\\u00a3 livered to defendant by said S. M. Woodruff, and that the' \\u00a3\\u00a3 letter annexed, marked D., was written and forwarded to \\u00a3\\u00a3 the plaintiffs by the defendant, but the auditors have at- \\u00a3\\u00a3 tached no importance to either.\\n\\u00a3\\u00a3 The auditors further find, upon the deposition of John \\u00a3\\u00a3 G. Colburn, that the store at Ogdensburgh belonged to the \\u00a3\\u00a3 defendant, and that the business thereof was transacted for \\u201c account of the defendant by said Hiram Pierce, who had \\u00a3\\u00a3 the control and management thereof, as agent of the de- \\u201c fendant; that said Hiram, as such agent, had authority to \\u00a3\\u00a3 make purchases in behalf and for .account of defendant, \\u00a3\\u00a3 and bind him for the payment thereof, and that the goods \\u201c charged in plaintiffs\\u2019 account were purchased for defend- \\u201c ant by said Hiram, in the lawful exercise of such agency. \\u00a3\\u00a3 The defendant objected to the reception of said deposition, \\u00a3\\u00a3 before the reading thereof, upon the'ground that the ma- <\\u00a3 gistrate,certifying the same,was not duly authorized to take a \\u201c deposition, stating, at the same time, that he made no fur- \\u201c ther objection. The objection was overruled and the deC\\u00a3 position read. Immediately after the reading of the depo- \\u00a3\\u00a3 sition, the defendant further objected, that it had not been \\u00a3\\u00a3 duly filed, but the auditors being of opinion that the ob- \\u00a3\\u00a3 jection was out of season, overruled it.\\n\\u00a3\\u00a3 And, upon the whole matter,the.auditors find that the de- \\u00a3< fendant is chargeable with-all the merchandize debited to \\u00a3\\u00a3 to him in the account of the plaintiff, And that the mer- \\u00a3\\u00a3 chandize was sold upon a credit of six months, and they \\u00a3\\u00a3 allow all the merchandize charged, amounting, in the whole, \\u201c to $5870,65 \\u00a3\\u00a3 together with interest at the rate of seven pr.\\n\\u00a3\\u00a3 cent. pr. annum, after six months, on each \\u00a3\\u00a3 bill, up to Jan. 11, 1840. 929,54\\n\\u00a3\\u00a3 And, after deducting the credits, find due to \\u00a3\\u00a3 the plaintiffs from the defendant, the sum \\u201c of \\u2022 3661,08\\u201d\\n' (D.)\\nOgdensburgh, 24 Feb. 1834.\\nMessrs. Walsh, Leonard &/\\u25a0 Jackson\\u2022\\nGentlemen : \\u2014 Such has been the unprecented falling off business this winter, such the scarcity of money, and the inability .of those indebted, to meet their engagements, that I can suggest no way to meet the demands against the Ogdensburg hardware establishment, unless a delay and extension is granted.\\nI have been at this place a week, and have been investigating the affairs, and the result I beg leave to hand you on the opposite page. The store has done a good business, and, in any other times than the present,should meet its engagements. There is no money in the country, and I am confident that were we to attempt to raise money by forcing a sale of any part of our stock, it could not be done, in this vicinity, at any sacrifice. The banks here and in Canada, do not discount a dollar. I have instructed my brother not to contract a debt for any more goods, as the stock on hand is already as .large again as it ought to be, but to collect in his debts with all the rigor that the safety of his claims will admit of. The business in Lower Canada, for the last season, has been most disastrous, and it will be very difficult for me, at present, to spare any more funds from my business there, without jeopardizing my business there. I leave this for St. Johns to day,and should feel obliged by your writing me, in duplicate, addressed to me both at St. Johns and this place.\\nVery respectfully yours,\\nJASON C. PIERCE.\\n(C-)\\nAlbany, April 18, 1834.\\nJ. C. Pierce,\\nDear Sir ; \\u2014 Permit us to introduce to you the bearer, Samuel M. Woodruff, Esq., of the firm of Reynolds & Woodruff, counsellors, &c. &c., of this city. Any assistance you may have it in your power to render Mr. Woodruff, we shall consider a particular favor, and be happy to reciprocate.\\nWe send you, by Mr. W., a copy of a letter we addressed to you the 10th ult., to which we have received no reply. You may, if you please, communicate with him respecting the subject of it.\\nYours, &c. &c.\\nWALSH, LEONARD & JACKSON.\\nThe defendant excepted to the report and assigned following causes of exception.\\n1. Because, the auditors erred in overruling the objections to the deposition of John G. Colburn.\\n2. Because, the deposition of Samuel M. Woodruff ought not to have been received by the auditors, it not having been taken originally as evidence in this court, and it did not, necessarily, pass to the supreme court, with the exceptions, by virtue of which this case came froni the county court.\\n3. Because, the auditors erred in not requiring the production of the original, paper on which Ahe goods in the first instance were procured, or in case of its loss, secondary proof of its contents.\\n4. Because, the plaintiffs, from the facts reported, are not entitled to recover.\\nC. Adams, for defendant.\\nI. The deposition of John G. Colburn should have been rejected. In point of fact it was not filed thirty days before the session of the court in the proper office. It therefore was not legal evidence and could not be read without this objection was removed.\\nThe time at which the objection is taken is unimportant, for if at any time before a decision, it appears that the testimony is illegal, as in the case of an interested witness, it is to be laid out of the case.\\nII. The deposition of Woodruff was not properly brought before the auditors. It is certain it did not go up with the exceptions. It could not be regarded as part of the original . files and papers, which the clerk is directed to carry up from the county court. It is not to be read as evidence, merely because it may have been read before, for, if it could not be read here for the first time, it cannot be read now. The statute provides for carrying up depositions on appeal, Stat. p. 59, but makes no provision that reaches this case.\\nPlaintiffs were not entitled to recover without the production of the original paper on which the goods were obtained or proper evidence of its contents. Slate v. I)e Wolf, 8 Conn. 93.\\nThe defendant has always insisted that his undertaking was collateral to the credit of Hiram Pierce and so it would appear if the paper were produced, and if so, this action could not be maintained, but the plain tiff must resort to a special action on the case.\\nAll that has been said or written by defendant, is consistent with this view of the paper, nay it is almost conclusive of it. The goods having been furnished upon the strength of the paper, it is beyond controversy the best evidence to prove the undertaking and indeed it is difficult to see how the character, of the undertaking can be proved without it. To prove the defendant primarily liable without the paper, there should be express evidence of such primary liability, but the evidence shows nothing of the kind. It shows nothing more than a collateral liability. The defendant\\u2019s letter of February, 1834, is probably the best evidence in the case to show what his relation was, and, from that, it strongly appears that the undertaking was collateral only.\\nJ. IV. Pomeroy, for plaintiff.\\nThe first objection to the deposition of Colburn, made before the auditors, is not now insisted upon by the defendant. As to the other objection, we insist that it was made too late. The deposition having already been read, by consent, so far as the time o\\u00ed filing was concerned.\\nBut it will appear from the report, that the auditors found every necessary fact in the case independently of this deposition.\\nII. The deposition of Woodruff was proper evidence before the auditors in this case. This deposition, having been made a part of the case, in the bill of exceptions, became a part of the record, and whenever the facts, or law of the case were to be examined and decided, it must be present and have its weight as evidence.\\nThe cause is the same, in every respect, and the reasons for taking the deposition still existed. Depositions \\u201c shall be admitted to be used in evidence in the causes for which they are taken.\\u201d Stat. p. 81. \\u00a7 80.\\nDepositions taken in chancery, in England, may be used on an issue of law in that conrt in the same cause. 2 Mad. Chan. 577.\\nIII. It is a sufficient answer to the third objection that the paper alluded to, was not designed to be, and, in fact, never was in the possession or control of the plaintiff, and the claim of the plaintiffs, does not rest upon any written undertaking of the defendant but on independent facts found by the auditors.\", \"word_count\": \"3282\", \"char_count\": \"18959\", \"text\": \"The opinion of the court was delivered by\\nRedfield, J.\\n\\u2014 In regard to the deposition of Colburn, we think the objection came too late. The deposition was, indeed, objected to, (on specific grounds, not now urged,) before it was read to the auditors. That objection being overruled and the deposition read, 'a still further objection was started, but ruled to be out of time. That was most clearly the case. The fact that the deposition had been objected to for one reason, and admitted, did not authorize the party objecting, to raise further objections at a subsequent period. It was the same, as to all other objections, as if the deposition had been read without objection. In such cases, the standing rule, both of this court and the several county courts, expressly precludes alt subsequent objections. Nor does it make any difference, that the objection was started during the trial, and immediately after the reading. The rule requires the objection to be made before the reading.\\nThe objection to the disposition of Woodruff, that it was not taken to be used in this court, and although taken to be used in the cause, and used without .objection in the county court, cannot be used after the cause is removed into this court, is intimately connected with the point just now decided. Whenever a deposition is used in a cause, without objection, it becomes a part of the papers and exhibits, belonging to the cause, and the rule of court requires, that it \\\" shall be lodged with the clerk and remain in his office, subject to the inspection of both parties.\\\" Such papers, therefore, when a cause is removed from the county to the supreme court, pass up with the cause, and if the action is book account, and it becomes necessary to send it again to'an auditor, they go out with the rule or commission to the auditor, as a part of the evidence, which either party may use.\\nThe remaining objection to the report, is founded upon the auditors allowing the plaintiffs to prove the agency of Hiram Pierce, in purchasing the goods, for which they claim to recover of the defendant, without producing the writing given by defendant to said Hiram. We do not learn, very definitely, the character or object of this writing. One. thing is certain, it was never intended for the plaintiffs, and was never under their control. The agency claimed is not of a character, which might not as well be created by mere words or acts, as by writing. In such cases it is well settled that the agency may be proved by \\u2014 1st, direct evidence of agency. In this case, if the authority was in writing, it must be produced and proved. 2 Stark. Ev. (6 Ed.) 31. Johnson v. Mason, 1 Esp. C. 89. Coore v. Callaway, Ib. 115. In the present case, perhaps, if the plaintiffs had relied solely upon an authority conferred upon the agent by writing, they should either have produced the writing or accounted for its absence. But, 2, this agency may be proved by the habit and .course of dealings between the parties. And where one man suffers another to carry on business upon his credit, he is bound, I take it, to the fullest extent, by all his contracts, within the apparent scope of that business, without regard to the terms of the particular contract of agency, unless brought home to those with whom the agent has dealings, and in that case, it is for the defendant to show their limitation to be short of the apparent extent of the business. 4 Conn. R. 288. 2 Stark. Ev. 32 and notes. This rule would seem fully to embrace the present case. Mechanics' Bank v. Bank of Columbia, Wheaton, 326. 4 Pet. C. R. 666.\\nBut, thirdly, it is fully competent for the defendant to recognize the acts of a mere intruder into his business ; and if he do, he is bound to make good the undertakings of such self-constituted agent. 2. Stark. Ev. 33 and notes. So, too where one has assumed to act on the part and behalf of another, and he is informed of such assumed agency, he must express his dissent within a reasonable time, otherwise his assent will be presumed. Amory v. Hamilton, 17 Mass. R. 103, Cairres v. Bleeckers, 12 Johns. R. 300. In the present case, in repeated instances, the defendant has distinctly and unequivocally .recognized (he- agency of Hiram Pierce, and not only promised to pay the plantiffs' debt, when fully informed of all the- facts, but even executed his promissory notes for the amount claimed, which were to be holden by plaintiffs as collateral security.\\nJudgment on. report for plaintiffs.\"}"