:804
FEDERAL REPORTER,
vol. 61.
Y.'jDustin, 112 U. S.604,5Sup. Ot.296, and of this court in Rush 'to Newman, 7 O. O.A. 13.6,58. Fed. 158, 160. This latter suggestion, however, is not important"for the reason, above stated, that there is in the present case no· bill, of exceptions which can operate to bring the testimony or any of the rulings of the trial court upon the record. It follows, we think, in: view of numerous fe'deraladjudications, that as an appellateoourt we are limited in otlrexamination of the .case in hand to the single inquiry whether the complaint filed in the circuit court was adequate to support the judgment, and that can hardly be regarded as a debatable question. Bond v. Dustin, supra; .Andes v; Slauson, 130.U. .s. 435,·438, 9 Sup. Ot. 573; Railway 00. v. Henson, 7 O. O. A. 349, 58 Fed: 531; Merrill v' Floyd, 2 O. .c. A. 58, 50 Fed. 849; Walker ,v., Miller, A. 331, 59 Fed. 869. It is apparent frolXl the judgment: entry that the circuit court allowed the ,defendants in error a credit for a large portion of the feesmentiolled in the exhibit attaphed to the defendants' answer; but, alii no demurrer was interposed to the plea .claiming these crediU!, .there is nothing in the record to indicate that the government contested the marshal's right to such allowances if the services charged for were actually-rendered. It follows,therefore, that this court willunot undertake to determine whether.the fees in question, or any of them, wa-e properly allowed as a credit, inasmuch as it does not appear that an issue of that kind was raised and decided by the trial court.! Railway, 00. v' Henson, supra; Elliott, App. Fooc. ,§§470, 476. We have all'eady alluded to the fact that the stipulation found in the record does not constitute "an agreed case;", because it does not appear that the case was submitted to the c(mrtfor its decision upon the facts recited 'in such We are accordingly precluded from considering the question whether the judgment is such as ought to have, ,been rendered on the agreed facts, as we might have done if it clearly appeared that the stipulation was intended to state an agreed case according to the practice approved inU. S. v.Bliasson, 16 Pet; 291; also,. inStimpsonv. Railroad 00., 10 How. 329, and Burr v. Navigation Co., 1 Wall. 102. Finding. no reversible error in. the record, the judgment of the Circuit court is hereby affirmed. SOOFIELD et,al. v. PARLIN & ORENDORFF 00. (Oircuit Oourt ot Appeals, Seventh Oircuit. May .1, 1894.) No.lBO. 1. EVIDENCE-LETTER-PRES'UMPTION OF GENUINENESS.
a
A letter received In due course of mall In response to a letter sent by the is presumed, in.the absence of any showing to the contrary, to be the letter Of the person whose name is signed to it.
SAHE-ADMISS10NCONTAIJll.ED IN OFFER OF COMPROMISE.·'
Where theexecntion,ot'tlll!! contract sued on is denied by the defendant, s letter offering tocomprottllse the claim, and making an express recognition of the contract, is· admissible in evidence as an admission of the execution. of the. contract.
IOOJ'lELD t7. PARLiN .. ORENDORFF CO.
805
8.
CONTRACTS OF CORPORATIONS-EvIDENCE-PRINCTPAL AND AGENT.
A contract entered Into on behalt of a business corporation by Its agent or manager is admissible in evidence against the corporation without proot that its execution was authorized by any formal corporate act.
Connecticut, doing business under the firm name of G. S. & F. M. Scofield, brought this suit against the defendant in error, the Parlin & Orendorff Company, a corporation and citizen of Illinois. The first count of the declaration alleges the execution by the defendant and acceptance by the plaintiffs of the following written proposition: "Estallllshed 1871. G. S. and F. Y. SCofield, General Advertising Agents,.30 East 14th Street, New York City. P. O. Box 4,401. . "New York City, Dec. 3rd, l&Sp. "You are hereby authorized to procure tor us the insertion of our advertisement in any number of country newspapers, not to exceed five hundred (500), said advertisement 'to occupy a space of four Inches, single column, fora· pe riod of six months. Upon presentation to us of the first copy of each paper containing our advertisement we agree to issue our duebill in favor of the publisher, or order, and to accept said duebill, when accompanied by thirtyfive dollars ($35.00), in cash, as full paym"nt tor one of our Clipper threewheel plows, the regular list price ot which is seventy dollars, f. o. c. at Canton, Ill. We further agree to pay you a cash commission of five dollars ($P.OO) for each paper in which you procure the insertion ot our advertisement, said commission to be due and payable upon presentation to us of the first copy of each paper containing' our advertisement. We also authorize you to furni'sh all electrotypes necessary to carry out this contract, tor which we agree to pay you twenty cents apiece. Parlin & Orendorff Co." "[Sgd.]
In Error to the Circuit Court of the United States for the South· ern District of illinois. Assumpsit by Gerrit S. Scofield and Frank M. Scofield, copart· ners doing business under the firm name and style of G. S. & F. M. Scofield, against the· Parlin & Orendorff Company. Defendant obtained judgment. Plaintiffs bring error. The plalntifl's in Gerrit S. Scofield and Frank Y. Scofield, citizens ot
It Is further alleged that, in the performance of the contract so made, the plaintiffs procured for the detendant the insertion ot its advertisement accord· ing to the terms and conditions of the contract in 327 country newspapers, and, immediately after the publication, In'each instance presented to the detendant the first copy of the newspapers containing the advertiseDient; that they also furnished a corresponding number of electrotypes, of which the detendant had notice; and that by means of the premises the defendant became liable to pay, and in consideration thereof undertook and promised to pay, to the plaintiffs the sum of $1,700.40. The declaration contains also the common counts for work and labor done, goods sold, and money had and received. The defendant pleaded the general Issue and non est factum. There was a trial by jury, Which, by direction of the court, returned a. verdict for the detendant. In order to prove the execution of the contract, the plaintiffs offered in evidence alleged correspondence between the parties, including a number of letters which purported to be written upon the defendant's letter-head paper, to be dated at its place of business, and to be signed by the defendant, and were shown to have been received in due course of mail by the plaintiffs, or by their attorney, to whom they were addressed. To the first letter offered, dated May 31, 1886, and which contained the expression, "since we contracted with Scofield Bros.," and other expressions indicating the existence of a contra.ct between the parties, It was objected that "the letter shows upon its face that it was written In pursuance of an arrangement by which they endeavored to compromise these matters. and there is no proof of Its exeC'lltion, or who executed it, or the authority of anybody to write it." The court sustained thlt
806
FEDERAL REl'ORTER, ! "
vol. 61. .",::
'-:1'(':-."._
objection, putting its ruling on the ground "that It Is not admissible under the speclalecount". nor under tM common count, being In the nature of an offer of compromise, and that compromise is not declared on, ,and it is not It corporate act/' Other letters were excluded upon the same:grounds, and When the letter of ];)eeember 5, 1885, Was offered; and a similar objection made, the court said: "The declaration declares on II special contract; which, it alleges, was OI)"tp.e 3d day of December, 1885. A, letter Is· offered in' evidence, purporting to be by the Parlin & Orendorff Company, accepting t,he propositions, and so on. It does not,Vurport to be the overt act. of the corporation at all, and iseTldently not ewhat'is declared on. Tbecontract is described with referencetodate, and so one, and what.purportB to be a haec "erba copy, as I set. out. TheobJectionw1ll be sustained." And again the court said: "This is a special contract, declared on against a corporation, alleging the corp'ora,tion made the.. cpni:ract.. I have held that any 'act to bind the defendant'must be a corporate act. 1 have held furthermore that only certain kinds of J)roof could be introduced on. the special count, and that on the common C()Unt'only certain kinds of proof could be introduced, and the proof offered dO not fall within thatelass. That is the substance of what! attempted to !!! hold." 'lDach of 'the letterS'offered in evideIice to which the"name of the defendant was subscribed had the following printed heading: "Office of Parlin & Orendpri'f Company, of Agricultural Implements, Oanton, TIl., - 188-." .
Sanders & Powers and Morton Culver, for plaintiffs in error· . Orendorff & Patton, for defendant in error. Before WOODS and JENKINS, Oircuit Judges, and BAKER, District JUdge. Circuit Judge (after stating the facts). We are of opinion . . tha:t the court erred in excluding from the jury the correspondente, and especiiJ,lly the letters purporting to ..be from the defendatl,4which qfIered in evidence for the purpose of showing the execution, and the existence between' the parties, of the contract setout in the declaration. depositing in the post office of a properly addressed, with the pdsta'ge prepaid, is prima facie evidence that the person to whom it was addressed received it" (Briggsv.Hervey, 130 Mass. 186); and, conversely, a letter received in due course of mail, and especially if it be in resI!0ense to a letter sent by the receiver, is presumptively the letter Qt the one wholile name is signed toit. Of the genuineness of the letters in question there was certainly sufficient prima facie evigence. ThepHtintiffs were advertisb;1g agents; the defendant, a manufacturer. of agricu.ltural implements. The letter of November 301. 1885, the. first in order of date, showed the willingness of the defendant to accept for its implements one-half of stated prices when accompanied by proof that enoughadvertisiJ,lg had been done t()pay for the other hll,If. To this the plaintiffs responded by the letter of December .3d, inclosing a form of their regular contracts, to be signed by the defendant, and two days later· was written the letter of Decenrber5, 1885; over the name of the defendant, saying, return herewithonr agreement .for advertising, Which you will please execute [perform] as soon as possible." In this letter sued on, and also a statement of the was inclosed the contents of the proposed advertisement, to· which also. was appeq4.ed the signature, ''Parlin & Orendorff Co., M'f'r's, Canton, IDs."
SCOFIELD
v.
PARLIN &: ORENDORI!'F CO.
807
The letter of May 31, 1886, after an express recognition of the fact that a contract between the parties had been made, proceeds to an offer of compromise. This letter, while not admissible to prove the offer of compromise, was admissible to show an independent statement or admission of fact pertinent to the question in issue. Of the authenticity of these letters, and the contract transmitted with one of them, the circumstances in proof, the regular transmission by mail, the letter heads and envelopes, and the contents of the letters themselves leave no reasonable doubt. They should have gone to the jury, and, in the absence of contrary evidence, should have been accepted as. conclusive of the execution of the contract by the defendant. The ruling of the court to the contrary, and, presumably, the sworn denial of the execution of the contract, proceeded upon the theory that, in order to bind the corporation, a contract must be shown to have been executed or authorized by a formal corporate act, such as an order or resolution of a board of directorE.. But the business of modern mercantile and manufacturing corporations is not always, or even generally, conducted in that way, but is committed to agents and managers, whose powers are limited practically only to the lines of business for the prosecution of which the corporations were formed. It follows that correspondence conducted by these agents, and contracts made by them. in the name of the principal, in the due and ordinary course of business, must be admissible in evidence as if the parties were natural persons. If a document offered against a corporation is not genuine, or its execution unauthorized, the corporation will be able in most instances to show the fact, while, on the other hand, if direct proof of formal or overt corporate action or authority were required of the opposite party, it would often be, indeed it would be in the power of the corporation to make it, difficult or impossible. It is contended by the appellee that there was a failure of evidence in other material respects, and, that, if there was error in excluding the letters and contract, it was harmless. There is, we think, no such lack of evidence in any respect suggested as to justify the taking of the case from the jury. Besides, the contract was, as it seems to us and as counsel for appellee have argued, essential to the plaintiffs' right of recovery upon any view of the case presented, and, that having been ruled out, the plaintiffs were not bound, in order to save the question, to go on making proof which, when made, could not, under the ruling of the court, be available. The judgment is reversed, and the cause remanded for a new trial..
&08-, : ;',;.
.'"
F!:U)En,A:to '; ,. I "
vol.
,';
v. (CirCuit, CllOurtot Atlpeals, Eighth Circuit !
May 7, 1894.)
J
No.
365· OFFIJ,ING;
.t\l'l'IllAlr-ASSIGN'HEN'l' OF
, ,In pursuance ot rule 11 ()t. the circuit court of appeals tor the eighth cirCliit (41' Fed. rl.),requiring an assignment of errors. to be filed with the pe,tition tor thew-rit of erroror'll.pp'eal, and declaring that errors not assigned ,.. aecording to this. rule will be 'disregarded, the court will not review a judglUep,t when of errors was not filed until after the writ of error was allowed. nor nnW after expiration of the six months allowed fors$g out the writ ()f' error. U. S. v. Goodrich, 4 C. O. A. 160, 54 Fed. 21, 'f{)ll()wed; ,
to the Uniteq Court in the Indian Territory. Thi$ was an action by Jane McCurtain, administratrix of Jackson F. ,McCurtain,deceased, against William F. on a promissory, note made by defendallt, payable to said Jackson F.· McCur.A demurrQl'to defendant's answer was sustained,and judgment .' for plaintiff was entered thereon. Defendant brought error. Goo. E: Nelson filed a brief' for plaintiff in error. and SANBORN, Circuit Judges, and TRAY· ER,pistrict JUdge. Citcuit Judge. By the act Qf March 3, lS!)l (26 Stat. Pll: 826, 829), now-rit of error, by whiGh a jUdgment can be reviewed call'be sued out after six months from its entry. Rule 1:1 ot'tl1lS court provides the plaintiff in error shall file with his the writ of errQi' an assignment of errors, that no writ of errqr shall be allowed until such assignment of errors has been filed, and th'rt.t' errors not assigned' according to this rule will be disregarded. judgment in error seeks to review here was en:tel.'E!q March 14, 1893. '. The writ of ,error and citatiOn are tested 1893.. No assigI).ment of errors was filed until September 18, 1,893: The. assignment of errors 'Was not filed until after the tin:).e t() sue out a writ of error to review this judgment had expired, nor ulltil more than a month after writ returned here was issued: Under our rule,which have repeatedly declared would be enforced,the supposed errors, assigned will be disregarded, and the ,affirmed, ,'Yith costs. U. S. v. Goodrich, 4 C. C. A. 00. v. Colorado Eastern Ry. Co., 4 160, 54 ,Fed. 21; Union Pac. C. C.1\..161, 54 Fed. 22;:F'1ahrity v. Union Pac. Ry. Co., 6 C. C. A.. 167, '56 Fed. 908. It is so ordered.
:tn