Santa Cruz Butchers' Union v. I X L Lime Co.

PER CURIAM. The action was to recover for merchandise alleged to have been sold to defendant, the theory o£ plaintiff being that the goods were sold and delivered through one B. Cerf, acting as defendant’s agent. Without first requiring proof of the agency, the court, against defendant’s objection, admitted the testimony of several witnesses as to declarations by Cerf of his authority to represent the defendant, and that they supposed he was defendant’s agent, because he was at the time acting as superintendent of the lime works, which defendant had theretofore been conducting. This evidence was wholly hearsay, and clearly inadmissible; and, as it was in great part all the evidence upon which the finding of Cerf’s agency was based, its admission was manifestly prejudicial. It was necessary that plaintiff first establish the fact of agency before the declarations of such agent were admissible to bind defendant: Grigsby v. Water Works Co., 40 Cal. 396; Smith v. Insurance Co., 107 Cal. 432, 437, 40 Pac. 540. Neither the statement of M. Cerf that Baruch Cerf was the superintendent, nor the letter from Bloehman & Cerf, were shown to emanate from anyone authorized to bind the defendant, and were not, therefore, conclusive of defendant’s liability. Judgment and order reversed.