Lee v. Oppenheimer , 34 Me. 181 ( 1852 )

The opinion of the Court, Shepley, C. J., Wells, Rice and Appleton, J. J., was drawn up by

Shepley, C. J.

The first question presented is, whether the declarations and representations of A. S. Herman were properly excluded.

There can be no doubt, as stated by the Judge, that they were .not admissible “unless it could be shown, that the declarations and representations were made as agent of the defendant or by his authority.”

It is insisted, that testimony had been already introduced, from which the jury might have inferred, that he acted as agent. It does not appear, that this position was taken at the trial, and presented to the consideration of the Court. Every position respecting the admissibility of testimony should be distinctly presented to the presiding Judge for decision, before it can be made the subject of exception.

If testimony, from which a jury might possibly infer, that one person had acted as the agent of another, of a character, that would not particularly attract attention, had been introduced, before the declarations of the person so acting were offered, the Court would perform its duty by stating correctly the rule of law applicable to it. If the counsel claimed to have the testimony admitted in accordance with the rule stated, he should have called the attention of the Court to the consideration of the testimony, which was alleged to be sufficient to render it admissible, that the very question now presented might have been before it for decision. To allow him to omit to do so, and after verdict to present such a position as error, would be to authorize a new trial not on account of an erroneous statement of the law, but on account of a want of perfect recollection at the time of every portion of the testimony already introduced.

It is however said, that the law was erroneously stated by the last clause of the sentence. The argument for this appears to be based upon the supposition, that the Judge not only required the agency of Herman to be proved, but that he was also specially authorized to malte the representations, which are alleged to have been made by him. The rule was stated by the use of a disjunctive and not by an adjunctive particle, which would have been necessary to render this part of the argument applicable.

To prove that the officer was authorized to receive the costs due to the plaintiffs’ attorney, testimony was offered, that the attorney had before and since permitted the officer to settle suits and to. receive his costs. This being objected to, the Court restricted its introduction to transactions prior to the payment made in this case. The witness, in violation of the rule, appears to have stated his transactions since as well as before that time. His statements respecting subsequent transactions must have been known to be unauthorized testimony, and it must be presumed to have been so regarded by the counsel and by the jury. If any doubt respecting its effect upon the jury existed in the mind of the counsel, it might have been removed by a request for instructions, that it should be disregarded.

Complaint is made, that the instruction respecting payment of the costs “ assumes, that the payment of costs, if made at all, is seasonable ; made within a reasonable time.” If the officer had become the agent of the attorney, to receive them, they were in contemplation of law received by the attorney. After payment had been received without objection, it is too late to insist, that it was not made within a reasonable time, and the Gourt might well assume that the payment was liable to no such objection.

It is further insisted, that the instructions requested should have been given. When the plaintiffs settled their debt at their place of residence and gave a receipt in full for it, on condition that the costs incurred should be paid, the just inference is, that the intention of the parties was, that they should be paid to those who were entitled to them. There was therefore no occasion for “ an express authority” from them or from their attorney. The officer’s authority to collect them for their attorney might be inferred from their former course of conduct. Exceptions overruled.