Browning v. Akins

Opinion of the court by Irwin, J.: The first assignment of error is: “The court committed error of law on the trial of said cause by excluding evidence offered by the plaintiffs as to *540 the goods being sold on the representation made by J. W. Augustine, to R. Gr. Hun & Co. Mercantile agency, and to which action of the court the plaintiffs in error did then and there duly except.” Second: “The court committed error of law in holding that the statement marked exhibit ‘A,’ attached to the petition of plaintiffs, must be proved to have been executed by J. W. Augustine, although the execution of said instrument was not denied under oath, or put in issue by the verified answer of the defendants.” Third: “The court committed error of law in overruling plaintiff’s motion for a new trial.” These assignments of error in reality raise but one question, and can all be discussed under one head, to-wit: Were the rulings of the court on these propositions such prejudicial error as affected the material interests and rights of the plaintiffs? An examination of the record will show that the first contention of the plaintiffs is not correct. On page 29 of the case-made, in the deposition of Francis King, one of the partners in the firm of Henry W. King and company, this question was asked: “Question. Hid you obtain any statement of any kind from either Bradstreet’s or Hun’s agencies? Answer. 1 obtained statements made by Augustine to both of these agencies. “Q. Upon what did you rely in making the sale so far as ascertaining Augustine’s financial responsibility was concerned? A. I relied entirely on the statements which he made to the commercial agencies, and formed my opinion of his responsibility from them.” It will be seen by these questions and answers that the court permitted the plaintiffs to show that the goods in question were sold on the representations made by J. W, Augustine, to the R. Gr. Hun & Company Mercantile *541 agency. And while it is true the record on page 38 of the case-made, shows that the court sustained an objection to the question asked of the same witness: “And would you have made the sale had you not seen and relied upon the statement said to have been made by Augustine to Bradstreet’s and Dun’s agencies, which you have just now quoted? Now, taking the questions previously propounded to the witness, and the answers thereto, in connection witn the question to which this objection was sustained, the only effect of the sustaining of this objection would be to prevent a repetition of the same question and answer, as the previous question was substantially the same as the one to which the court sustained the objection. In the previous questions the witness was asked upon what the plaintiff relied as to the financial responsibility of the said J. W. Augustine, in selling him the goods, and his answer was that it was upon the statements made to these commercial agencies; which shows conclusively, so far as the testimony of this witness goes, that the plaintiff relied upon these statements, and sold the goods in consequence thereof; hence we think, in view of this fact, that the contention of plaintiff and his assignment of error on this point is not well taken. Now as to the second assignment of error, to-wit: “That the court erred in holding that the statement marked exhibit ‘A’, attached to plaintiff’s petition, must be proved to have been executed by said J. W, Augustine although the execution of said instrument was not denied under oath, or put in issue by a verified answer of the defendants.” We think that an examination of the record will show that this assignment of error is not correct. *542 If the contention of plaintiff is correct, that exhibit “A” is such an instrument as is intended by section 3986 of the Statutes of 1893, and that its execution could only be questioned by a denial under oath, then what was the necessity of putting in any proof as to the signature or the correctness of the copy attached to plaintiff’s petition? If by force of the pleadings, the execution of this written instrument -and the endorsements thereon, and the statements therein contained, were admitted by the defendant and must be accepted as true by the court, then it was entirely unnecessary for the plaintiff to make or offer to make any proof of these facts. And we take the rule to be that if plaintiff, notwithstanding the fact that proof of the genuineness of the written instrument, or proof of its execution, being unnecessary, does attempt to prove these facts, he must submit such proof as is competent and proper under the law; that is he must produce the best evidence obtainable of the facts sought to be established. If counsel’s position as to the pleadings is correct, there was no issue as to the financial statement made by J. W. Augustine to plaintiffs in error through the R. G. Dun & Company Mercantile agency, and there was no necessity for plaintiffsi offering any evidence, for the reason that the facts attempted to be proved were admitted by the pleadings-. Now, accepting this as true, that is, that the execution and delivery of the written instrument described as exhibit “A,” to the plaintiffs by the R. G. Dun & Company -Mercantile agency, was admitted by the pleadings, there was still something moré necessary to be proven on the part of the plaintiffs in order to recover in this action against the defendants, Burnham, Hanna, Munger and *543 company, to-w'it: tbe plaintiffs must proye that the title obtained by Burnham, Hanna, Munger and company by virtue of the mortgage purchased of E. S. Augustine, and their attachment levied against J. W. Augustine, was obtained with a knowledge of the claim of the plaintiff as set forth in the petition in this case. Now an examination of the record will show an entire failure to sustain this point by any evidence in the case. No attempt was made to prove in any way that Burnham, Hanna, Munger and company, defendant in the court below, had any knowledge of4the manner in which the goods were purchased; the time at which they were purchased; or had any knowledge of any claim on the part of the plaintiff. This proof was absolutely necessary for a recovery against the defendants, Burnham, Hanna, Munger and company, and plaintiff having failed to make this proof, the court below could have rendered no other or different judgment than that which was rendered, whether the genuineness of this statement of E. G-. Dun. & Company was or was not proven, or whether said written instrument was or was not admitted in evidence. Hence we are unable to see from an examination of the entire record, how any prejudicial error has been committed by the court below. In the case of Gready v. Ready, 40 Wis. 478, the court says: “When it is perfectly apparent from the record that the judgment must have been the same if all the testimony erroneously rejected had been received, there is nothing unreasonable in saying that the error in excluding the evidence offered should be disregarded, as it could not have prejudiced the plaintiff.” *544 Applying this doctrine to the case at bar, we think the judgment of the lower court was correct, and should be sustained, which is accordingly done. Hainer, J., having presided in the court below, not sitting; all of the other Justices concurring.