Ogden Commission Co. v. R. Campbell

*564 CHERRY, J. Tbe plaintiff sued tbe defendant for $180.92 for tbe balance of an account for peacb baskets sold and delivered and for money lent to defendant. Tbe defendant put in a counterclaim alleging that be bad sold and delivered 1,500 bushels of peaches to plaintiff upon the terms that plaintiff would pay him 75 cents per bushel therefor, and, “in tbe event that said peaches when sold would warrant same, tbe plaintiff would pay tbe defendant any additional sums for which said peaches would sell for over and above tbe costs of tbe baskets and tbe plaintiff’s commission”; that plaintiff bad delivered him peacb baskets of tbe value of $395, and paid him $100 in money, and bad “failed and refused to render any accounting of tbe sale of said peaches.” Defendant prayed for judgment against tbe plaintiff for $630, with interest. Tbe reply of plaintiff to tbe counterclaim was a general denial. A trial by jury resulted in a verdict for tbe defendant in tbe amount prayed for in bis counterclaim, and from tbe judgment entered thereon plaintiff has appealed. Tbe only error assigned or complained of is the admission of certain evidence offered by defendant over tbe objection and exception of plaintiff. It was admitted that tbe plaintiff had delivered tbe peach baskets to defendant, and bad paid him $100 in money. It was also admitted that tbe defendant bad delivered 1,500 bushels of peaches to plaintiff. Tbe only issue in tbe case was tbe terms upon which tbe defendant delivered bis peaches to the plaintiff; it being claimed by tbe plaintiff at the trial that they were delivered upon consignment to be sold on defendant’s account. Tbe defendant, in support of his contention, testified that tbe plaintiff offered to take bis peaches “on consignment,” but that be declined the offer, whereupon tbe plaintiff’s manager stated: "I can guarantee 75 cents a bushel, and I think X can get you 90 cents or $1; however, I will guarantee that they will net you 75 cents.” *565 The defendant stated that be agreed to tbe proposal, and thereafter delivered 1,500 bushels of peaches to the plaintiff. The peaches were loaded in railroad cars at different stations and at different times. That other growers in the locality (naming seven witnesses who subsequently testified as to the fact) loaded peaches in the same cars with defendant and each other whereby the peaches delivered by the defendant were commingled with those delivered by other growers. The defendant then produced as witnesses four of the growers who had delivered peaches to the plaintiff and had loaded them in the same cars and at the same times and places as defendant, three of whom testified separately over the plaintiff’s objection that he had sold his peaches to the plaintiff at 75 cents per bushel, and.one of them testified, “Well, I consigned mine.” The admission of the evidence of the three witnesses above referred to is the ground relied upon by the appellant for a reversal of the judgment. On behalf of the plaintiff its manager testified that he agreed to take defendant’s peaches “upon a strictly consigned basis,” and did not guarantee 75 cents per bushel. He testified that he advanced $100 to defendant on the transaction, and that later “a statement as to where his peaches had gone and where they had been sold” was furnished to the defendant. The contents of the statement were not shown, and nothing was made to appear relating to the prices obtained for defendant’s peaches or the net proceeds of the sales. The defendant denied receiving any statement or account at any time. An employé of the plaintiff testified that she heard the defendant say that he had consigned his peaches, and the plaintiff produced three peach growers (from the number which defendant testified had loaded peaches at the same times and in the same ears with himself), each of whom testified that he had delivered his peaches to the plaintiff “on consignment.” Upon substantially the foregoing evidence the jury found for the defendant. The question to be determined is whether the reception of *566 the evidence complained of by appellant affords grounds suf-, ficient to warrant a reversal of the judgment. The cases are generally to the effect that contracts, or their terms, in case of dispute, cannot be proved by evidence that one of the parties has made other similar contracts with other persons. 11 Ency. Ev. 780, 783. Professor Wigmore, however, says that the evidence as a class is not inadmissible; that there is merely a question in each instance of the probative value of the particular facts .offered. 1 Wigmore, Ev. § 377 (3). And there is respectable authority for the proposition that the admission or exclusion of such evidence^ is within the discretion of the trial court, subject to review only in case of abuse. 22 C. J. 744; Bone v. Hayes, 99 P. 172, 154 Cal. 759; Wilkinson v. Dilenbeck, 168 N. W. 115, 184 Iowa, 81. In the latter view the test of admissibility is the degree of probability that the course pursued in one instance would be followed in the other. The defendant’s contract, as testified to by himself, was a consignment contract with a guarantee of 75 cents per bushel. The evidence objected to was that three witnesses each sold his peach crop to the plaintiff at 75 cents a bushel, which was a variation from defendant’s contract. And the defendant produced a fourth witness who testified to a contract with the plaintiff which differed from them all. In these circumstances we have no hesitancy in saying that the evidence under consideration was wholly without probative value, and that it should have been excluded. But it does not follow that the judgment must be reversed for the error. The plaintiff produced three witnesses who each testified that he disposed of his peach crop to plaintiff “upon consignment.” There was no dispute whatever as to the terms upon which any of the third persons had dealt with the plaintiff, or that the terms of their contracts differed from each other and all differed from the contract asserted by defendant. If any inference or presumption at all was deducible from the contracts made with third persons, it was in favor of the plaintiff’s contention, because four of the seven witnesses who testified upon the subject testified to having made contracts identical with what the plaintiff *567 claimed was its contract with the defendant, and neither of the seven testified to a contract identical with the contract as claimed by defendant. We are nnable to say from this record that the plaintiff was affected or injured in any substantial right by the error complained of. The verdict of the jury must have been the same had the evidence objected to been excluded. Knowlton v. Thompson, 218, P. 117, 62 Utah, 142. Judgment affirmed. GIDEON, C. J., and FRICK, J., concur. THURMAN, J., dissents.