R. M. McAlpin and Another v. Michael Ziller, 17 Tex. 508

Wheeler, J. The answers of the witness Hill, to questions propounded to him' touching the' receipt he had given, were obnoxious to both the objections taken to the deposition. The questions were leading; and proposed to prove by parol the contents of a writing. To prove that the receipt was a “ receipt in full” for “ goods” &c., was certainly proving its contents. But the receipt itself was afterwards produced in evidence ; and thus the deposition of the witness was superseded, and rendered wholly immaterial.

The objection to the introduction of the receipt, was, that a proper foundation for its admission had not been laid, by evidence of the authority of Hill to receive and receipt for the money. But, as such evidence was introduced upon the trial, it is immaterial whether it had been, at the time the receipt was offered, or not; the receipt was properly admitted in evidence. Again ; the evidence offered to prove the receipt, and the receipt itself, were introduced for the purpose of proving payment. The evidence could have no other object or effect.

But the proof of the payment of the money was clear and positive, independent of the receipt; so that the receipt and the evidence in respect to it, were rendered wholly immaterial. The receipt was not the only, nor the best evidence of the payment of the money. It was not an instrument which the law re. quires to be in writing : nor did it evidence any contract be- ' tween the parties; nor was the existence or contents of the receipt, the question in dispute.

It was a matter collateral to the question in issue,-—-the payment of the money,— and there was no necessity to produce it, or account for its non-production, to let in other evidence of the payment. The only question in the case, deserving of notice, is whether Hill had authority from the plaintiffs to receive payment; or was held out to the world, by them, as having such authority as to warrant the defendant in making the payment to him, as the plaintiffs’ authorized agent.

Upon this subject the Court instructed the jury, to the effect, that in order to find the fact of payment, they must be “ satisfied from the evidence that the “ money due for the goods was paid to the plaintiffs themselves, “ or to some one who ihad the right and authority to receive it for them ; if Ben. F. Hill had no such authority, then Zil4£ler isHable to repay it, and you must find a verdict for the 41 plaintiff,” &o. This Instruction was more favorable to the plaintiffs than they had a right to ask. For it required the jury to be satisfied that Hill had the authority from the plaintiffs in point of fact.

Whereas, if the plaintiffs held him out to the world as having such authority, it would make no difference what was the private or actual understanding and relation of the parties. Third persons, acting upon the plaintiffs’ representations, would be equally protected whether, in point of fact, he had the authority or not. Third persons cannot be affected by the private understanding between the parties, which is known only to themselves. Under the charge of the?Court, it is evident, the jury must have been satisfied that Hill had authority from the plaintiffs to act as their agent in making collections.

And the only question is whether they were warranted by the evidence in so finding. We think they were. It is certain that the plaintiffs held him out to others as having such authority ; and the jury were warranted in finding that he had the authority which the plaintiffs themselves represented him to possess. The appellants’ counsel complain of the refusal of the Court to give instructions which appear, by the record, to have been asked on a former trial; and were not asked on the final trial.

It is scarcely necessary to say that the ruling of the Court upon those instructions can have had no influence upon the finál trial, and can with no propriety be brought under discussion upon this appeal. The appellants have nothing of which to complain in the charge of the Court, or the finding of the jury upon the evidence. There is no error in the judgment, and it is affirmed. Judgment affirmed.