The claimed errors in the rulings upon evidence will be first considered. They are eighteen in number but it will not be necessary to consider them all separately. They will be considered substantially in the order of statement in the reasons of appeal.
Upon his direct examination the plaintiff was permitted to state, in substance, that he was the inventor of a buckle and that he had then been in the buckle business about nineteen years. The defendant complains of this, and we think without reason. At most it was a preliminary matter and certainly did the defendant no harm; but it was clearly admissible as bearing upon the value of plaintiff's services under a quantum meruit, if it became necessary to make that claim.
One of the strongly contested points in the case was whether the plaintiff had ever been appointed or employed by the defendant after November, 1893, as its general manager. With a view to prove that he had been so appointed or employed, the plaintiff was asked the following question: "At whose instigation or solicitation did you enter upon the duties as treasurer and general manager of the Hammond Buckle Company on November 14th, 1893?" This and several other questions of similar form were, upon objection, withdrawn before answer, because, as defendant claimed, they assumed without proof that the plaintiff had been treasurer and general manager of the defendant. The court then suggested that plaintiff should be asked what he did for the defendant in 1893 and onwards, and afterwards show how he came to perform those duties. The plaintiff was then asked, in substance, to state in detail what he did for the defendant from November 14th, 1893, onwards, and he did so at some length. This was claimed and admitted against the defendant's objection, for the purpose of showing the duties incident to the position of general manager, and what plaintiff actually did. Later on the plaintiff was asked this question: "Passing to the second item of the bill of particulars, which speaks of services as general manager for eleven and one half months to April 16th, 1897; were those months immediately prior to April 16th, 1897?" This was finally changed and asked in *Page 138 this form: "What were you doing during the 11 1/2 months preceding April 16th, 1897?" The defendant objected to this on the ground, substantially, that it assumed without proof that the plaintiff had been employed during this period by the defendant. The court overruled the objection and admitted the evidence. The witness answered, in substance, that the managed the business, sold goods, made contracts in behalf of the defendant, looked after its interests the best he knew how, and directed and advised in the management of the business. The plaintiff was then asked concerning the third item of his bill of particulars this question: "Did you pay any money to H. C. Hammond the bookkeeper?" The defendant objected to this, because there was no authority shown in him to pay money to the bookkeeper. The objection was overruled and the witness answered that he did, and stated the amount he had so paid.
We think in each of these three instances the ruling was correct. It was within the discretion of the court to permit the plaintiff in this way to show what he actually did, and what he actually paid, as one step in his proof, leaving the question whether he was authorized or employed to act, or pay, expressly or impliedly by the defendant, to be proved later on.
The plaintiff claimed that by an oral agreement between Banigan and all the stockholders of the defendant, made and consummated on the 14th day of November, 1893, Banigan became and was the sole owner, for a short time, of the property and stock of the defendant corporation; that on that day, and while Banigan was thus sole owner of the property and stock, Banigan verbally employed the plaintiff to go on with the business of the defendant as treasurer and general manager; that at Banigan's request the plaintiff did so; and that this action of Banigan in thus employing the plaintiff was ratified by the defendant at its next annual meeting in January, 1894. There were no official written memoranda of any kind of this purchase or of this employment. The defendant objected to any and all evidence of this purchase by Banigan, and of the employment of the plaintiff by Banigan *Page 139 as treasurer and general manager. The court ruled, in effect, that evidence might then be given of said purchase and employment on the 14th day of November, 1893, on condition that it should afterwards be shown that what Banigan did in employing the plaintiff was ratified by the defendant. The plaintiff then testified in substance that he was on said day, while Banigan was sole owner as aforesaid, employed by Banigan as treasurer and general manager of the defendant, and that he then and there began and thereafter continued to perform the duties incident to said positions.
We think the evidence of this purchase and employment was conditionally admissible as held by the court, for what it was worth upon the disputed question as to whether the plaintiff had ever filled the position of general manager, which latter question had some slight bearing upon the further question as to whether the plaintiff had, with the express or implied authority of the defendant, performed the duties of general manager after April, 1896, when he ceased to be treasurer. But what Banigan said at this same interview about other matters outside of the transaction of purchase and employment, to which the plaintiff, against the defendant's objection, was permitted to testify, was clearly not admissible, although it probably did the defendant no harm.
The letter from Banigan to the plaintiff of November 17th, 1893, was clearly inadmissible. It was written after Banigan had ceased to be the owner of the stock and property of the defendant; it was a statement of what he had done, and what he desired to have done, concerning matters irrelevant and immaterial; and it was mere hearsay evidence. The fact that Banigan was dead when it was offered in evidence did not make it admissible in this case.
The extracts from the records of the executive committee, and from the records of the directors and stockholders' meetings of the United States Rubber Company, were also inadmissible, because they were immaterial and irrelevant. They all went merely to show that the Rubber Company had become the owner of stock of the defendant, a fact about which there was no dispute, and which sufficiently appeared from the books *Page 140 of the defendant, which furnished the proper evidence of that fact. So far as these extracts afforded evidence of anything else the evidence was mere hearsay.
The extract, Exhibit R, from the annual report of the president of the Rubber Company, made in April, 1894, was manifestly offered because it contained a statement that the plaintiff was "now the manager" of the defendant. This was clearly hearsay evidence and should have been excluded.
The plaintiff and his son were both allowed, against the objection of the defendant, to testify, in substance, that the business and profits of the business had largely increased between November 15th, 1893, and the time when the plaintiff ceased his connection with the defendant. This was admitted as bearing upon the value of the services of the plaintiff upon a quantum meruit, if it became necessary to make such a claim.
The evidence was inadmissible, unless it was also shown that the claimed increase was due in whole or in part, or in some way, to the services of the plaintiff, and no attempt was made to show this. We think the court erred, as the matter stood, in permitting this evidence to go to the jury. Because of these several erroneous rulings upon evidence, we think the defendant is entitled to a new trial. In this view of the case it becomes unnecessary to state or consider the claimed errors relating to the charge of the court to the jury.
With reference to the appeal from the action of the court below in denying the defendant's motion for a new trial, we are of opinion that the court did not err in denying that motion. Upon the other appeal there is error and a new trial is granted.
In this opinion the other judges concurred.