Chany v. Hotchkiss

*106 Case, J. Chany was not present upon the trial of the cause in the District Court, where his deposition, taken at the instance of the present plaintiffs, was received in evidence upon their offer. It included statements the substance of which was that in the transactions involved he acted as the agent of these plaintiffs. The defendants, with due notice, had failed to appear and were not represented by counsel when he so deposed. To contradict this testimony they offered his earlier deposition, which had been taken and used on his behalf in the City Court in the same action and while he was the plaintiff of record. It was excluded, upon the ground that failure to bring the claimed inconsistencies to the attention of the witness by cross-examination precluded the use, in his absence, of his former testimony, for the purpose of contradicting that which had been read to the jury. If the correctness of this ruling depended upon the reason given for it, and we were bound to assume contradictious upon some material matter in the testimony of the witness as given at successive stages of the case, we might hesitate to sustain it as within either the spirit or letter of Hedge v. Clapp, 22 Conn. 262, 267, upon which the trial court relied. Chany’s relation to the case and the circumstances under which his statements were made, render it doubtful whether, even under the discretionary power of the court, he was entitled to the benefit of a familiar rule framed chiefly for the protection of witnesses against sudden surprise in situations that cannot reasonably be foreseen and guarded against. The evidence was properly excluded, however, and it is immaterial that the court may have put its ruling on the wrong ground. The questions and answers in the first deposition which are specifically relied upon by the defendants, show, as the only basis for the claimed contradiction, Chany’s failure to state that he was acting as the agent of the present plaintiffs rather than in his own interest. He was justified in this. He said nothing that his position did not warrant him in saying; he withheld nothing that he *107 was bound to disclose. As he started out to do, he might have successfully maintained the action in his own name as the agent of an undisclosed principal. Sullivan v. Shailor, 70 Conn. 738, 40 Atl. 1054. The testimony offered had no tendency to contradict or discredit the witness, and to have admitted it for such a purpose would have given the jury an entirely misleading notion as to its possible legal effect. Nor is there force in the claim that the court acted of its own motion and in the absence of formal objection to the offered testimony. If this is the fact, it is without significance, and if the court so acted, this was well within the limits of its discretion. It was undisputed upon the trial that the defendants still retained the money which they received' from Chany, and that this measured the market value of the corn at the time they received it. The parties were at issue as .to the terms of the underlying agreement. The court charged the jury, in substance, that where the purchase price has been paid for personal property on a contract of sale, and not refunded, the measure of damages upon a failure to deliver the goods as agreed is the market value of the goods at the agreed time of delivery. Error is assigned because the court did not in terms limit the application of the rule to the market value at the agreed place of delivery. Ordinarily, of course, an accurate statement of the rule must embrace this element of it. Marshall v. Clark, 78 Conn. 9, 11, 60 Atl. 741; Jordan, Marsh & Co. v. Patte rson, 67 Conn. 473, 480, 35 Atl. 521. But there are cases where the omission can work no harm, as where the conditions disclose a general market value fixing the prices at the several local markets within the radius of its operation. All the testimony on this branch of the case came from witnesses professing knowledge of the general market value of seed corn of the kind in question in the territory involved. While the defendants had ample opportunity to meet this testimony, it was not claimed that exceptional conditions existed at Waterbury, nor was it anywhere objected that other than the general market value so testified to controlled *108 and regulated the prices at that place. Under these circumstances the court properly assumed that the general market value afforded the true measure, and adequately charged the jury in this respect. It is also assigned as error that the court, by an inadvertent substitution of the word “ defense ” for “ plaintiffs,” told the jury at the opening of the charge that “ the testimony offered by the defense tended to substantiate ” one of the plaintiffs’ material claims. This was not an isolated statement, and should not be construed as one. The mistake was palpable, and was clearly exposed by the context, by what immediately followed, and by recurring references later onto the respective claims of the parties. We cannot suppose the jury to have been misled by it without setting unwarranted limits to their intelligence. State v. Rathbun, 74 Conn. 524, 526, 533, 51 Atl. 540. No other claim of error merits discussion. The liability of the defendants to at least the amount assessed against them in the City Court is established by the record. The contest, therefore, is solely over the difference between that sum and the amount of the judgment from which this appeal is taken—a little more than $15. In a somewhat similar situation a new trial was refused in the case of Buddington v. Knowles, 30 Conn. 26, and it was said: “We take this opportunity to say that a new trial in such cases should not be asked for, unless the case be one which involves something more than a trifling sum of money.” While this suggestion has not ripened into an unyielding rule of practice, it is a salutary one which still meets with the full approval of this court. There is no error. In this opinion the other judges concurred.