National Supply Co. v. Jebb

Spring, J. : The plaintiff, an Ohio corporation, commenced this action in December, 1907, alleging that in the summer of 1902, and down to the month of May, 1903, it sold and delivered goods, consisting of oil well supplies and machinery, to the defendant, a resident of Buffalo, in this State. The defendant was operating two tracts of land which were producing petroleum, one in Hancock county and the other in Wood county, in the State of Ohio. The defendant did not personally superintend the drilling or producing operations on either of these tracts, and the alleged purchases were made of the plaintiff by agents of the defendant in actual charge of his business on these two parcels of land. ■' The defendant claimed on the trial that his books of account containing the entries of these transactions had been destroyed and he had no personal knowledge of the purchases; that the agents who • made them- were unfriendly to him and, as several years had elapsed after the business had terminated and, before the commencement of this action, he insisted that the sales should be proved by competent proof. The defense on this line does not' impress me favorably. It was, however, left to the jury to determine whether the goods were actually sold and delivered to the defendant, and it seems to ine there was sufficient evidence, in connection with the inferences which may properly be indulged in, to require submission to the jury. The account of the supplies for each tract was' kept separately and designated by the name of the county in which it was located. The Hancock county account amounted at the time- of the trial to about $1,550, while the Wood county account exceeded $9,000. As to this larger claim the defendant interposed a defense in addition to the one already adverted to. He claimed that in the early part of 1903 he sold to one Percy, a man of financial responsibility and residing in the State of Ohio, a large quantity of property connected with this tract, and as part consideration of its purchase price Percy assumed and agreed to pay the plaintiff all its demands against the defendant. The property, it is claimed-, ivas delivered to Percy and about -the same time the defendant had conversations' over the telephone with agents of the plaintiff at Toledo, Ohio, whereby the [258] plaintiff agreed to accept Percy as the sole debtor for this account and-release the defendant from any liability to it. Percy died prior tó the commencement of this action and the defendant was sharply contradicted as to these facts. The weight of the oral testimony is against the defendant and yet there are some circumstances which tend to corroborate his story. For nearly five years no claim was made against him. . An action was commenced to establish the claim and make it a lien upon the property. Apparently Percy defended and the suit was pending at'the time this action was commenced. In February, 1907, the attorney for the plaintiff wrote to the defendant urging payment of the amount due the plaintiff and stating that the sum was $1,355, being for the material furnished for the Hancock county -property, and no suggestion was made that- the defendant was indebted for the larger sum or for any part of the goods furnished for the Wood county property.. Again, early in March the same attorney wrote to the defendant for information to aid in accomplishing an adjustment with Percy. Other circumstances áre narrated which, it is claimed, tend to confirm the position of the defendant. Suffice it to say that the court very properly allowed the jury to determine whether the novation agreement was in fact made; and, if so, that the defendant must be acquitted of liability for the larger claim. There were, therefore, two important issues passed upon by the jury and adversely to the defendant. ■■ In the first place I have some doubt whether the preliminary facts essential in order to authorize the reception in evidence of the books of account and sales sheets of the plaintiff were sufficiently proven. Passing that, however, there are other errors which, it seems to me, cannot be disregarded. The defendant had testified to the so-called novation agreement. He was cross-examined properly enough at great length on this subject. During that examination the plaintiff’s- counsel examined the defendant minutely as to several independent transactions in no way connected with the present' action. It seems that the defendant fifteen or eighteen years ago was interested in a. grape sugar glucose plant at Waukegan, 111., and was an officer of that company. His connection with it ended in 1898, so that it could have no possible connection with this litigation; He gave a $15,000 note in con [259] nection with that business, an action was brought upon it, and an answer was interposed. Extracts from this answer were read before the jury on the trial of this action, and he was examined at considerable length in regard to the note and other transactions in connection with this industry. ’ This proof was given under objection, and it was incompetent; Again, he was interested in the United States Starch Company, and was the. treasurer of that corporation, which was also established at Waukegan, 111.; and also another company called the Ohio Crude Petroleum Company. His connection with these organizations was aired before the jury with a good deal of sarcasm and vigor by the counsel for the plaintiff. All this was under objection, and the evidence .should not have been admitted. An action was brought by one Harlow Curtis against the defendant charging him with fraud in obtaining about $20,000 by false pretenses from Curtis, and of course this litigation had nothing to do with the present action. Counsel commenced liis cross-examination upon this subject by asking if upon that trial the counsel for the defendant did not ask the court to charge that there could be no recovery for breach of contract, “ but the jury must find that the defendant was guilty of actual fraud before there can be a verdict against him; ” that the court so charged, and then the counsel . asked, “ and the verdict of the 'jury against you was $18,555.40, wasn’t it?” -When the appeal book containing the charge was presented to the witness, the counsel for the plaintiff made this statement: “ Look at the appeal book — you paid for it, I assume.” These are simply samples of the cross-examination upon this subject. They had no relation whatever to the present trial, which was an action to recover for goods sold and delivered. Evidence of this kind would prejudice the minds of the jurors against the defendant. The effect of it was to satisfy the jury that upon that trial the defendant was charged with actual fraud, that the court charged the jury there could be no recovery except for actual fraud, and the verdict was in favor of the. plaintiff for the large sum stated. More damaging proof could not be imagined, and the plaintiff’s counsel had no business to elicit .it upon the trial. Repeated objections were interposed to this class of evidence all through the trial, but the court for some reason saw fit to [260] admit it. The same subject was again entered upon further oh in the cross-examination. The court in liis charge tried to destroy the effect of this damaging testimony by saying to the jury that these transactions were of no consequence in the consideration of this action. The vice had been committed by receiving the testimony, and the effect of it could not be effaced from the minds of the jurors. ■ . The courts have frequently condemned cross-examinations of this kind. (Laidlaw v. Sage, 158 N. Y. 73, 102 et seq.; Yager v. Person, 42 Hun, 400; People v. Morrison, 195 N. Y. 116; Hall v. United States Radiator Co., 76 App. Div. 504.) The action was a simple one and the issues in a narrow-compass and were required to be passed upon by the jury. ' If the evidence was overwhelmingly against the defendant there was still less justification for parading before the jury his unsuccessful attempts to defend other "actions, and to read the charge of the court in. one of these cases to the effect that no recovery could be had against him except for actual fraud, and then sharply elicit the fact that a verdict was recovered against him for more • than $18,000. The defendant with a meritorious defense and with-the proof preponderating largely in his favor could not overcome the. sting of that kind of examination. The judgment" and order should be reversed, and a new trial granted, with costs "to the appellant to abide event.' ; All concurred, except McLennan, P. J., and Kruse, J., who dissented in an opinion by McLennan, P. J.