Palmer v. Pinkham

Shepley, C. J. — When this case was presented on a former occasion, 33 Maine, 32, the letter addressed by Mr. Appleton to the plaintiffs, communicating to them the remarks made by the defendant Sayward, to him, constituted a part of the testimony. On the last trial it was offered and excluded. There was not in the former report, and is not now presented, any satisfactory proof, that the defendants were in fact partners. The only ground upon which the plaintiffs were then, or can now be considered as entitled [255] to maintain the action, is, that part of the goods were sold and delivered upon a representation of the defendant Say-ward, communicated to them, that he was a partner. As the case is now presented, there is no satisfactory proof, that Sayward’s representation to Appleton was communicated to the plaintiffs before they sold and delivered the last bill of goods. According to the report, Mr. Appleton testified, that on the day of his conversation with Sayward, ho wrote the letter shown to him to the plaintiffs. What he wrote does not appear to have been stated, and the letter was not received as testimony. On the testimony presented for their consideration, the jury were fully authorized, if hot required, to find a verdict for the defendant. The counsel for the plaintiffs insists, that the letter of Mr. Appleton to the plaintiffs was erroneously excluded. If this be so, the Court cannot entertain the question and correct the error, unless the case is presented in such form, that it may be done according to the provisions of some statute giving relief in such cases. Full provision has been made for relief by a bill of exceptions $ but none is presented. The report of the evidence does state, that the letter was offered and excluded, and that certain testimony was objected to and admitted. The report appears to have been made in conformity to the provisions of the Act of 1852, c. 246, § 8. ' It contains the testimony received, not that excluded. It is insisted, that the question, whether testimony was correctly admitted or excluded, may be comprehended in this language of the eighth section, “ all questions of lav/’ arising on reports of evidence.” No question of law on the exclusion or admission of testimony can arise on such a report, which would only present questions of law arising out of the evidence reported. This language had reference to a particular course of proceeding in our practice; that of reporting testimony received in a cause, without its submission for decision to a jury, under an agreement of par [256] ties, that the Court may dispose .of the cause as the parties have agreed. The language used in that Act, to provide for a case like the present, is, “ all motions for new trial upon evidence reported by the presiding justice.” This does not and was not intended to embrace a contested question respecting the admission or exclusion of testimony. A construction of either of these clauses, that would authorize it, would be productive of irregularity and mischief in practice. Motion overruled. Howard, Hathaway and Cutting, J. J., concurred.