McRae v. Argonaut Land & Development Co.

HAYNES, C. The notice of appeal in this case specifies that it is taken by the defendant from the judgment, and also from an order denying its motion for a new trial. The stipulation of counsel to the correctness of the transcript shows that the undertaking on appeal is from the judgment only, and respondent calls attention to this fact, and objects to a consideration of the appeal from the order denying a new trial. This objection is well taken, and the appeal from the order should be dismissed. The record contains a statement on motion for new trial, which respondent concedes [146]may be regarded as a bill of exceptions on appeal from the judgment; but, as the appeal was not taken within sixty days after the rendition of the judgment, exceptions to the findings upon the ground that they are not justified by the evidence cannot be considered: Code Civ. Proc., sec. 939, subd. 1. The only questions for consideration arise upon the rulings of the court upon matters of evidence. This action is prosecuted to recover for services rendered by one W. D. McLaurin for the defendant in reference to a large tract of land owned by it near the city of Stockton, the claim and demand therefor having been assigned by McLaurin to Malcolm McRae, plaintiff’s intestate. McLaurin was employed by one George H. Fair brother, who acted, or assumed to act, as the agent of the defendant. Fairbrother’s deposition was taken by the plaintiff, and among other questions put to him by the plaintiff was the following: “During the time you were acting as agent, did you know W. D. McLaurin 1 ’ ’ Defendant objected, on.the ground that the question assumes the witness was acting as agent. Before this question was put, the witness had, without objection, testified generally, and without reference to McLaurin’s employment, that he had acted as agent for the defendant. The question, therefore, assumed nothing, and was entirely proper. It was not an attempt to prove agency, as contended by appellant in its brief, but to show that while acting as agent he knew McLaurin. While the statements or admissions of one, not as a witness, that in a certain transaction he acted as agent for another, are not competent to prove the fact of agency, yet, if he is called as a witness, his testimony, not only that he acted as the agent of the party, but as to the fact of agency, and the nature and extent of his authority, where it rests in parol, is as competent as that of any other witness: Mechem, Ag., sec. 101, and cases there cited.

It is also contended by appellant that the court erred in sustaining plaintiff’s objection to the following question put by defendant to its witness Fugene Wilhoit: “Q. Now, look on that record of May 20th, and see whether there is any record of any charge for any work done for that corporation by you.” Fairbrother and McLaurin had each testified that a written contract between McLaurin and the defendant, for McLaurin's employment, was drawn up by Mr. Wilhoit, and Mr. Wilhoit had testified that he had no recollection of it;