Kendall v. Flanders

Remick, J. 1. The exclusion of the evidence of Kiel and Dane presents nothing but a question of remoteness. That the question of remoteness is left to the discretion of the judge who tries the case, is too well settled in this state to need the citation of authority. 2. It does not appear for what purpose tlie subsequent agreement was offered, nor upon what ground its exclusion was objected to. If offered for the purpose of modifying the contract evidenced by tlie note in suit, to have been admissible it must have been supported by a consideration. The plaintiff asserts that it was wholly without consideration. This is not denied by the defendant. Tlie fact does not appear either way in the record. If the agreement was offered to show an admission by the plaintiff as to *12 the value of .the premises, — that he believed they would sell for so much more than #4,000 that he was willing to obligate himself to accept one half of what they would sell for- in excess of that sum, in lieu of the interest to which he was entitled upon the note in suit, — then it was competent and admissible, unless in the judgment of the superior court it was too remote, which may have been the case. There is nothing in the record to show the contrary. The purpose for which the agreement was offered and the ground of the defendant’s objection to its exclusion not appearing, the exception must be overruled. The party excepting “ must show clearly and affirmatively from the record itself facts constituting error in the proceeding below.” 2 Enc. PI. & Pr. 424, 425. Exceptions overruled. All concurred.