Kroetch v. Empire Mill Co.

AILSHIE, J. This action was commenced by the plaintiffs against defendants charging them with the conversion of one hundred and sixty-nine thousand fence posts, thirty-five boom poles, and some rope belonging to plaintiffs, and praying judgment for the value thereof. The defendants answered and denied the allegations of the complaint and the defendant, Empire Mill Company, alleged that it was the owner of the boom poles and one hundred and fifty thousand of the fence posts, and charges that the plaintiff, L. S. Kroetch, procured a bill of , sale of and for said property from one John W. Allen in fraud of defendants and without any consideration therefor, and with the intent to defraud defendants and with knowledge that the defendant, Empire Mill Company, had paid $4,294.44 as a part of the purchase price for said property, and that said posts belonged to said defendant. The case went to trial before the court with a jury and plaintiffs introduced their evidence and rested their case. Thereupon the defendants applied for a nonsuit and the application was granted and a judgment of nonsuit was duly entered. Appellant assigns thirty-nine errors in the rulings of the court in this case, the last one of which is directed against the action of the court in granting a nonsuit. Without discussing the evidence introduced, suffice it to say that the court erred in taking the case from the jury. Plaintiffs had made, at least, a prima facie ease. They had shown a purchase of the property, and introduced a bill of sale therefor, and proved that [281] they had taken possession of the property and its conversion by defendants. This court has held that it is reversible error to grant a non-suit where the plaintiff has made a prima facie case. (Kansteiner v. Clyne, 5 Idaho, 59, 46 Pac. 1019; Idaho Mercantile Co. v. Kalanquin, 7 Idaho, 295, 62 Pac. 925.) Since we have concluded that the judgment of nonsuit was erroneously entered and the case must go back for trial, it becomes our duty under the law to pass upon each of the other thirty-eight assignments of error. We shall group these together, however, as much as possible and will refer to them by number rather than quote in this opinion the questions, answers and rulings of which appellants complain. The first assignment of error is the ruling of the court in refusing to allow an amendment to the complaint after the trial had commenced. It seems that the first amendment requested by plaintiff was allowed by the court, but at the time the court made its ruling allowing the amendment, plaintiff submitted a further amendment on the same subject, which was more specific and comprehensive than the first, and the court refused to allow it. The first amendment requested, and which was allowed, was sufficient to let in the evidence plaintiff desired to introduce thereunder, and there was no error in the ruling of the court disallowing the second amendment offered. Plaintiff took no exception to the ruling of the court as set forth in assignment No. 2, and that question cannot, therefore, be considered here. The court should have allowed the questions to be answered as set forth in assignments 3, 4, 6, 7, 8, 11 and 12. Assignment No. 5 goes to the action of the court in refusing to allow an amendment to a paragraph of the complaint during the progress of the trial. The amendment offered is as follows: "Also one boom of about eight thousand cedar fence posts, situated in the reserve boom of the Empire Mill Company.” We do not think the refusal of this amendment was prejudicial to plaintiff. The same facts were admissible in evidence under the original complaint as would have been under this amendment. [282] It should he remembered, however, that the statute commands great liberality in the allowance of amendments in the furtherance of justice between the parties. (Eev. Stats., secs. 4228, 4229.) We see no error in the rulings of the court as set forth, in assignments 9, 13, 14, 15, 16, 18, 19, 22, 33, 24, 28, 29, 30, 31, 32, 34, 36, 37 and 38.. . Assignment No. 10 is taken to the comment of the trial judge upon the evidence of the witness O’Neal in the presence of the jury. The plaintiff having been nonsuited and the jury discharged, the plaintiff was not prejudiced in this case by the remarks of the court. But it is well enough to say here that trial judges cannot be too careful about any remarks made by them in the presence of the jury touching the weight of evidence or credibility of witnesses. This court has recently been called upon to express an opinion on this same subject. (See State v. Shuff, ante, p. 115, 72 Pac. 664.) The seventeenth assignment is made to the admission of defendants’ exhibit No. 1 upon cross-examination of plaintiff’s witness, O’Neal. This exhibit was a letter written by plaintiffs to defendant, Empire Mill Company, offering to compromise this matter. It was error to admit the letter. A clear distinction exists between the admission of specific facts .and an offer or overture to make a compromise and settle the controversy. The policy of the law favors settlements and compromises. (1 Greenleaf on Evidence, sec. 192; Underhill on Evidence, sec. 75, and authorities there cited.) The twentieth assignment complained of is the action of the court in permitting the defendants to introduce their exhibit No. 2 in evidence upon cross-examination of the plaintiff, L. S. Kroetch. This exhibit consists of a letter written by one H. E. Weld to Kroetch Bros., and their reply thereto concerning some posts Weld had sold to John Allen for plaintiffs. This was not proper cross-examination of the witness and had no connection with his evidence in chief and should not have been admitted. The practice of allowing a party to identify and introduce exhibits on cross-examination of his adversary’s witness is bad practice and should seldom be permitted. It [283] should only be allowed where the exhibit contradicts something-the witness has testified to upon his examination in chief or is intimately connected with something about which he has -testified. Each party is entitled to make out his case without having injected into it the case of his adversary, except in so far as it is disclosed by legitimate cross-examination. Assignment No. 21 is against the ruling of the court in admitting defendant’s exhibit No. 5 on cross-examination of the plaintiff, L. S. Kroetch. This is a.letter written by the witness while acting as secretary of the defendant, Empire Mill Company, and while under the views above stated we do not think it was error to admit this'letter, it would have been better practice to allow the defendant to identify it by the witness while on the stand and withhold introducing it in evidence until they come to make out their case. The twenty-fifth assignment is taken to the action of the-court in permitting the defendants to ask plaintiff, L. S. Kroetch, the following question on cross-examination: “Was not $778.25 the money of the Empire Mill Company?” Defendant had alleged that this plaintiff was a stockholder in the Empire Mill Company, and was its secretary and treasurer, and we see no error in permitting them to show that as such officer he had paid the defendants’ money for the posts. Assignment No. 26 goes to the ruling of the court in permitting defendants to ask the same witness on cross-examination if he had not used $180 which was in his possession, belonging to the Catholic church, toward the purchase of these posts. This evidence was entirely immaterial and its sole tendency was to prejudice the jury against him. It should not have been allowed. Assignment No. 27 is to the same effect as No. 25, and what is there said applies to this question. We see no error in the court allowing the question answered as set forth in assignment No. 33. Appellant contends that the question should not have been answered, for the reason that it was an attempt to show an offer of compromise. It does not sufficiently appear from the record that this was in connection with any offer of compromise to justify its exclusion. [284] Assignment No. 35 is urged against tbe action of the court in requiring the following question answered by plaintiff, L. S. Kroetch, on cross-examination: “How many booms did you get out with the intention of selling to other parties than the Empire Mill Company?” This question was wholly immaterial and should not have been allowed. This disposes of all the questions raised on this appeal. Many of the assignments of error have been disposed of in this opinion without setting forth the questions asked and the rulings of the court, for the reason that their incorporation in the opinion would be of no benefit to the profession and would only result in encumbering the record with many additional pages of valueless matter. The judgment is reversed and cause remanded. Costs awarded to appellant. Sullivan, C. J., and Stockslager, J., concur.