Not being able to agree to the conclusion reached in the leading opinion, in sustaining the third and fourth exceptions, I most respectfully dissent and shall, in a brief way, state my reasons therefor.
Under the third exception the appellant imputes error to the presiding Judge as follows: "That his Honor, the presiding Judge, erred in admitting, over the objection of the plaintiff, the testimony of the witness, Reynolds, relative to alleged statements made by Hotopp when he was in Allendale to demonstrate the machine, in reference to the purchase *Page 503 of a new engine to run the machine; the error being that said testimony should not have been admitted because (a) any such alleged conversation or instructions were without the scope of Hotopp's authority; (b) said alleged conversations or instructions were not part of the res gesta and were not made in connection with demonstration of the machine by Hotopp."
As I view the issues involved the testimony in question was competent and the exception should be overruled. Pursuant to a provision of the contract, Mr. Hotopp, a representative of the plaintiff, was sent by the plaintiff to Allendale to demonstrate for the defendant the machine in question. It clearly appears from the testimony of the defendant's witnesses, and also from the testimony of this Mr. Hotopp, who testified for the plaintiff, that Mr. Hotopp met with considerable difficulty in getting the machine to do the work for which it was sold, and while in the discharge of his duty in demonstrating the machine ordered certain pieces for the machine, which were used by him on the machine. The particular testimony objected to by the plaintiff was to the effect that Mr. Hotopp while trying to demonstrate the machine told the defendant that he needed another engine with which to operate the machine and instructed the defendant to get another engine, and that the defendant acting upon the instructions procured another engine. In my opinion, if Mr. Hotopp, acting in the capacity for which he was sent, thought it was necessary to have another engine in order to get the machine to operate successfully, it was his duty to inform the defendant of such fact, and it was proper for the jury to have this information. While Mr. Hotopp, who testified for the plaintiff, in the course of his testimony denied having instructed the defendant to get another engine, what he testified to in my opinion amounted to about the same thing. On the direct examination of this witness by counsel for the plaintiff he testified on this phase of the case as follows: *Page 504
"Q. Now, Mr. Hotopp, when you first got there, state whether or not they had power enough to run that planer? A. Well, they did not have enough power, and Mr. Jim Mims, I think, the first day I was there, and he asked me, what you think of that engine over there, and he said, you think we are going to have enough power? And I said I do not know, and you see it was shut down, and that was the time we had the broken sprocket, and he said, I got one in line, and he said, I think I am going to get hold of 100 horse power engine, and I said that would be better than this one. I am no engine expert, I know nothing about engines.
"Q. And it was not at your suggestion that he got that engine? A. No, sir, I could make no suggestion about buying any engine.
"Q. You do not know anything about it? A. No, sir."
On the cross examination Mr. Hotopp stated:
"Q. He bought another engine? A. Yes, sir, he did.
"Q. And you swear you never advised him to buy it? A. I advised him to get more power.
"Q. What was he going to do with the other engine? A. I told him that the other engine did not have enough power."
To my mind what the representative of the plaintiff admitted saying was tantamount to advising the defendant to get another engine; that the machine could not be successfully operated without an engine with more power than the one then in use. Having been sent there to demonstrate the machine it was expected of Mr. Hotopp to give such information and advice as would aid the operation of the machine, and, in my opinion, the jury was entitled to know these facts.
Under the fourth exception the appellant imputes error to the presiding Judge in admitting, over the objection of the plaintiff, the testimony of the witness, Beam, with reference to the alleged statements made by Mr. Hotopp, when he was at Allendale as the representative of the plaintiff to demonstrate the machine in question, in reference to the condition of the machine. *Page 505
Having been sent to Allendale as the representative of the plaintiff to demonstrate the machine in question, it is hard to conceive of how Mr. Hotopp could be expected to work for several weeks on the machine for the purpose of demonstrating it, order and put on new parts or attachments, as the evidence shows was done, and yet not expected to give any expression as to the condition of the machine. Furthermore, in demonstrating and working upon the machine for the period of time stated, Mr. Hotopp, perhaps, had a better opportunity as a mechanic to ascertain and point out the defects of the machine, if any existed, than the mechanics in the shop where the machine was built, and as a representative of the manufacturer, the plaintiff herein, his statements as to the condition of the machine, based on information acquired while working on the machine and trying to demonstrate it, and made while in the discharge on such duty, should, in my opinion, be admitted in evidence.
Furthermore, if the admission of the testimony complained of under this, the fourth exception, be held to be error, it was harmless error, for the reason that the testimony in question related to admissions as to defects in the machine in question, and the presiding Judge did not submit that issue to the jury; but the issue submitted, as announced by the Judge, was whether or not the machine delivered was the machine ordered; and there was no motion to strike out this alleged inadmissible testimony. In my opinion the appellant has no ground to complain, and I think the exceptions should be overruled.
I am in accord with the conclusion reached in the leading opinion in overruling the other exceptions.
I, therefore, think the judgment of this Court should be that the judgment of the Circuit Court be affirmed. *Page 506