Clark & Perkins v. Gridley

By the Court, Sanderson, J.: First—We cannot consider the points made by counsel for the appellant against the admission of the depositions of the Halls and Stevenses, or the summary statements of Perkins as to the condition of the account, conceding them to have merit, for no objection was made to their admission. All objections to the testimony on the ground of any supposed illegality must be made in the Court below at the trial, and cannot be interposed for the first time upon the. motion for a new trial. The absence of the party against whom the evidence is offered makes no difference in this rule. If his absence was the result of accident or surprise, it constitutes [403] a separate ground for a new trial, but cannot be brought forward to support a different ground, which, of itself, is untenable. If his absence cannot be charged to the account of accident or surprise, it must have been suo negligentia, from which no advantage can come in any form. Second—The claim that the verdict is not sustained by the evidence, because no testimony was given as to any disbursements by the plaintiffs, is also untenable. The testimony of Perkins went to that point. He did not, so far as the record shows, go into details, it is true, but he stated generally that the wool business had resulted in a heavy loss, all of which had fallen upon the plaintiffs. He also stated what the loss had been, and how much was the defendant’s share, and that the same was unpaid. This, it is true, was testifying to results rather than to the facts from which they followed, but the defendant was not there to object, and, in the absence of any objection, the mode was permissible. Third—The contract, which is set out at length in the complaint, provides for the sale of wool in the San Francisco and in the Eastern markets. The account of the wool sold in the San Francisco market, when a debit balance occurred, was to be charged with interest at the rate of two per cent per month; but the account of wool sold in the Eastern markets, when a debit balance occurred, was to draw only seven per cent per annum. So far as the testimony shows—and the presumption is that all the testimony bearing upon the question is contained in the record, (Hidden v. Jordan, 28 Cal. 301,)—the sales all took place in the Eastern markets, and yet the complaint shows that two per cent per month is claimed by the plaintiffs upon their advances, instead of seven per cent per annum, as agreed in the contract; and the verdict and judgment shows that the jury allowed the former rate from the 7th of January, 1867, until the action was tried. This was error; and, while it does not affirmatively appear that the account had been kept and finally made up by the plaintiffs under the two per cent per month clause in the contract, instead of the seven per cent per annum clause, it may [404] be fairly inferred from the relief sought by them in relation to the balance due, that they kept the account throughout under the two per cent clause. If so, a very erroneous result may have been reached. If we were satisfied that the account had been kept upon that basis, we should be disposed to deny a new trial, provided the plaintiffs would consent to remit the excess of interest found' by the jury; but under the circumstances, we are disposed to make the order unconditional. Judgment reversed, and a new trial ordered. Mr. Justice Rhodes expressed no opinion.