
    THE NEW YORK SMELTING AND REFINING COMPANY, Appellant v. GEORGE LIEB, Respondent.
    
      Evidence, exelusion of, when not injurious to appellant—agency as to a particular transaction, exclusion of testimony as to general powers of a superintendent of a corporation when not injurious, § 829 Code of Civil Procedure, who not debarred from testifying by its provisions, one for whose benefit the business in relation to which the evidence is given, he being an inf ant,is not.
    
    One of the questions involved in this case was whether one Schoenberg, the superintendent of plaintiff, was constituted the agent of plaintiff according to whose directions defendant was to construct a certain machine; evidence was given on behalf of the defendant that at the time when he was employed to construct the machine the president said 'to him, “You make this machine as Schoenberg instructs you.” The court charged the jury that Schoenberg, as superintendent, simply had no authority to direct the defendant; but that if the president did make to defendant the said statement the defendant had a right to act in accordance with the instructions given by Schoenberg. Held, that the exclusion of testimony as to the custom of the superintendent, as to the mode of the business of the company, as to whether any person other ' than the president was authorized to give orders, and as to whether the witness (not being the president) authorized the superintendent to give directions as to the machine in question, or for extra work, was not injurious to the appellant, even if the evidence was relevant, and therefore its exclusion was not ground for reversal.
    On the trial a son of the defendant was permitted to testify to directions given by Schoenberg (Schoenberg being deceased). Held, that although the business -was set up and prosecuted for the benefit of the son, yet as he had no legal interest in it and as being an infant he could not have a legal interest, and as he was not a party to the action and was not interested in the event, and was not one from whom the defendant had acquired an interest he was not precluded from testifying by the provisions of § 829 of the Code of Civil Procedure.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Appeal from judgment entered on verdict of jury.
    The facts sufficiently appear in the opinion.
    
      Leopold Wallach, attorney and of counsel for appellant, argued:—
    I. The learned judge erred in not admitting the questions tending to show the extent of the authority of Schoenberg, the superintendent, and the custom of the plaintiffs relative to the giving of orders. MacDonell on Lato of Master and Servant, 244; Starr v. Gregory, 6 Montana Reports, 485; Smith’s Law of Master and Servant, 4th ed., 275 ; 2 Starkie N. P. C. 281; Salk. 442; Ward v. Evans, Comb. 450; 2 Ld. Raym., 930; Paley on Agency, 137; Wood on Master and Servant, 503, 529; Maunders v. Conyers, 2 Starkie 250; Story on Agency, § 77, p. 96 ; Howard v. Smith, 56 Mo. 314; Kraft v. Fancher, 44 Md. 204; Smith’s Mercantile Law, 120; Pickering v. Busk, 15 East 38; Gallinger v. Lake Shore Traffic Co., 67 Wisc. 529 ; 30 Northwestern Rep., 790.
    II. The. learned judge says, that he “ will charge the jury, that simply as superintendent he (Schoenberg) had no authority to order goods.” This leaves us to think that the reason for the exclusion of the testimony, tending to show custom, was the fact of Schoenberg’s connection with the company as one of its trustees. The members of a corporation aggregate cannot separately and individually give their consent in such manner as to oblige themselves, as a collective body, for in such case it is not the body that acts. Angell and Ames on Corporations, 9th ed., 206; Winchester v. Balt. & Susquehanna R. R. Co., 4 Md. Rep. 239, 240.
    TTT. The learned judge erred in admitting any of the testimony relative to conversations between Schoenberg and the defendant. Card v. Card, 39 N. Y. 317; Potts v. Mayer, 86 N. Y. 302. Section 829 of the Code of Civil Procedure, undoubtedly covers this case.
    
      Walsh & EcJcerson, attorneys, and P. Q. EcJcerson of counsel for respondent, argued :—
    I. The president of the company having told defendant’s son, who was to build the machine, that “ Mr. Abram Schoenberg (the superintendent of plaintiff) would direct us how to build the machine—he was the inventor of it”—it was proper for this son of defendant to state what Schoenberg said to him in reference to the machine, and the motion to strike out this evidence was properly denied.
    II. The rule of the plaintiff as to by whom orders had to be signed, or who should give orders, except the president, etc., could in no way bind or affect the defendant in this case. It had been previously shown that- the president gave the order for making this machine, and there was no by-law fixing these duties. The question as to what were the duties of a man who had nothing to do with the matter in question, was clearly improper, and objection .thereto was properly sustained, as were also the questions as to the rulés of the factory properly excluded, and I submit that no error was committed upon any of the rulings on the evidence.
   By the Court.—Sedgwick, Ch. J.

action .was The to recover certain sums paid on account to the defendant, under a written contract between the parties, by which the defendant was to make a certain machine for the plaintiff, the plaintiff alleging that the defendant failed to make or deliver the machine as provided by the contract. The answer alleged performance of the contract by the defendant and made a counter-claim for the part of the contract price that remained unpaid and for extra work and materials furnished at request of the plaintiff.

The objections taken upon the trial by plaintiff referred especially to the relations of one Schoenberg to the plaintiff, the defendant claiming that he was the agent of plaintiff to direct the defendant as to the manner in which the machine should be constructed.

It was conceded, virtually, that Mr. Schütz, the president of the plaintiff, had authority to make the contract and to direct the manner of its performance. The defendant gave testimony, that the machine was built according to the directions of Schoenberg, who was a superintendent of the manufacturing department of the plaintiff. Among other facts and declarations that tended to establish that Mr. Schütz gave specific authority to Schoenberg to act for the plaintiff in the matter was proof by the defendant that at the time the contract was made, Mr. Schütz said to the defendant, that Mr. Schoenberg would direct him how to build the machine, he being the inventor of it.

The plaintiff disputed the facts and claimed that Schoenberg was not the agent of the plaintiff. For the purpose of maintaining their position, they asked of witnesses, being officers of the plaintiff, questions like these. And in regard to orders, what was the custom, if he, Schoenberg, wanted anything, so far as you were concerned ? What was the usual mode of business in your company, if anything was desired or any order was to be given, as coming from the superintendent? Who, if any person in the place, was authorized to give orders for machinery or matters of that kind, with the exception of the president? Was there any one in your place, who was authorized to give orders for machinery or for any outside work with the exception of the president ? Did you (the witness not being the president) ever authorize him to make any contracts or to superintend the manufacture of a machine which Mr. Lieb was making or to give orders for extra work ?

The witnesses of whom these questions were asked had without objection described the duties and employment of Schoenberg, as superintendent and in his general relation to the company. But the questions were immaterial to the issue, in view of the statement of the court as to the way in .which he would submit it to the jury, and this statement conformed to the charge after-wards made. The charge was that Mr. Schoenberg, as superintendent, simply had no authority to direct the defendant; that the question for the jury was, did Mr. Schütz delegate to Mr. Schoenberg the power of controlling Mr. Lieb in reference to the construction of the machine, and that if it were the fact that Mr. Schütz did say to the defendant, “You make this machine as Schoenberg instructs you,” then the defendant had a right to act in accordance with instructions given by Schoenberg.

It therefore appears that the exclusion of the questions, was not injurious to the plaintiff even if it is assumed that they were relevant.

It appeared on the trial, that Mr. Schoenberg was dead. On the argument of the appeal it is insisted that a witness was allowed to testify as to Schoenberg’s directions to defendant, after it was objected that the evidence was incompetent under section 829 Code Civil Procedure that forbids a party, etc., from testifying to a personal transaction with the deceased, etc. .The witness referred to was not a party or a person interested in the event or one from whom the defendant had acquired an interest. He was. the son of the. defendant, and although the defendant’s business was set up and prosecuted for the benefit of the witness, yet the witness had no legal interest in "the business and being an infant, was, under the circumstances incapacitated from having a legal interest. There is no intention to hold that if it were otherwise the exception taken would raise the point or be valid in itself. The exceptions on this subject should not be sustained.

What has been said, has referred to all the exceptions argued upon the appeal.

The judgment is affirmed with costs.

Freedman and Ingraham, JJ., concurred.  