Murphy v. Boker

By the court, The learned judge before whom this cause was tried, submitted a single issue of fact to the jury, to wit: Whether the articles tendered by the defendants in satisfaction of the contract in controversy, were such as were generally known to the trade as plain seasonable No. 1 (buffalo) robes, and on all other points ruled as requested by the plaintiffs, He called their attention to the fact that there was a certain assortment of robes known' in the trade as “ P. Chouteau’s No. 1 plain seasonable,” and that was a standard description. * * * But the words used in the contract were “plain seasonable No. 1,” the word “ Chouteau,” not being introduced. No exception was taken to the charge. A motion for a new trial on a case was denied. An appeal is taken from the order denying it, as well as the judgment. The main ground for moving to set aside such verdict is, that it was so clearly against evidence as to show partiality, prejudice or misapprehension on the part of the jury. And the admission of evidence to prove a mistake in the contract, which it failed to establish, is supposed to have contributed largely to such result. Robertson, C. J. The testimony of six witnesses was directed to the issue thus submitted to the jury. Two besides the plaintiff Murphy, and their porter (Ball), were introduced on the part of the plaintiffs, to wit: Mr. Bouton, a dealer in buffalo robes, and his porter (McKenna), and two on the part of the defendants; one of them, to wit: Mr. Herbeck, a — 260 — dealer in furs, and his salesman (Monroe). No meaning seems to have been attributed to the word “ plain ” beyond its ordinary sense. “ Seasonable,” was held to bfe applicable to skins obtained in the winter season, full grown, full furred, of dark color and good pelt. The principal difficulty was to settle the meaning of the term “ No. 1,” either, with or without those words. Eobes sent to the market as “Chouteau’s,” in the original packages, and sold as No. 1 plain seasonable Chouteau’s, are understood to be of a certain kind, and are not generally examined by buyers. After those packages were broken and a new assortment made, it seems to have been difficult to fix the standard. Mr. Bouton (the buffalo robe dealer), who as he stated, always referred to those sold in the market as “ Chouteau's original assortment,” when he spoke of quality, testified that there was no assortment after it left Chouteau’s hands, there was no particular grade for No. 1. “ After leaving Chouteau’s, plain seasonable No. 1, had a meaning within ten or fifteen per cent.” When he sold his own plain seasonable No. 1 robes, he always showed them. If a person sold without reference to Chouteau’s standard, but in reference to the market, he ought to come within ten or twenty per cent of the original. The plaintiff Murphy testified, that there was no such thing as No. 1 robes. He did not know of any mark No. 1, There were no No. 1, but plain seasonable Chouteau’s, Mr. Bouton reasserted his robes, and marked them No. 1, plain seasonable. Mr. Herbeck testified, that there had been no standard for what was known as plain seasonable No. 1 robes. “ Every dealer made a different assortment, A No. 1 seasonable skin is supposed to be a very good skin; there are better skins, and they are making better every day.” * * * “ There is no standard by .which to determine a strict No. 1.” No. 1, plain seasonable Chouteau’s * * * has reference to the size and quality of the robe.” Mr. Monroe understood plain seasonable No. 1, to be the same as No. 1. — 261 — There was also some evidence that there was a class of robes known in the trade as No. 1, imperfect” Herbeck testified, that a patched role was an imperfect skin. Ball (the plaintiffs’ portel) testified, that either a patch on or a hole in it made it imperfect. There appears also to have been other robes known to the trade, designated as Chouteau’s plain seasonable No. 2, and No. 3, and imperfect, or No. 4, Seasonable No. 2, was a full pelted skin, not as dark as No. 1, but a kind of yellow; the difference between it and No. 1, was in the color; it was larger than No. 3, No. 1 damaged, was a skin with spots in it ; No. 2 imperfect, was where they were patched; No. 2 damaged, was an imperfect No, 1, with several spots on it, or holes in it; No. 3 was a No. 1 robe, with five or six spots in it; No. 4 was the worst quality, and was known as plain seasonable imper-feet The testimony as to the character of the robes tendered by the defendants, consisted of that of Messrs. Bouton, Herbeck, Ball and McKenna, besides that of the plaintiff Murphy. The first named (Bouton), examined a lot of buffalo robes in bales, in the store where those in question were deposited, about the time of the sale. He examined twelve or fifteen bales taken promiscuously from the pile, and handled over every bale in the lot. They were mixed robes, according to Chouteau’s original assortment, No. Is, 2s and 3s. One-third No. 1, plain seasonable, all the rest inferior. His porter (McKenna) testified, “ they were cut With rats; they were not perfect; * * * they were not like the company’s robes at all.” Mr. Herbeck bought two hundred and fifteen bales of the same lot, including about five and a half bales of loose. He examined fifty of the bales he bought at his own store, and opened a dozen before he bought. He considered them, except the loose skins, No. Is, and sold them as such. He bought them for plain seasonable No. 1 Chouteau’s, and in his opinion they were so. He found no No, 1 imperfect, or No. 2 in that — 262 — lot, except the loose skins. The plaintiff Murphy, testified, that of the fifty bales delivered to him, he examined some six or eight. They were inferior to the robes mentioned in the contract. They differed in qualities. Some few were good, but the majority were inferior. Out of six bales containing seventy-two robes so examined, three-eighths only complied with the contract; nearly one-third were Wo. Is, imperfect; over about one-fifth No. 2s, regular ; two were No 2s, imperfect, and two No. 3s; all of inferior value to those mentioned in the contract. This evidence was corroborated by that of his porter (Ball).' The onus lay on the plaintiff of establishing what was meant by plain seasonable No. 1s, and if it meant only according to Chouteau’s standard, that it did so even when no such name was expressed. There was evidence enough in the case to sustain a finding that it did not, and. that it was intended merely to describe an assortment of a high character, within ten or twenty- per cent of that standard, and .that the limits were very vague. It is evident from -the whole testimony of the plaintiff and his porter, they were testifying as to the inferiority of the goods tendered mbasuredXby the Chouteau standard. Neither of them describe, tne nature of the imperfection or inferiority stated by them, although Ball described the different grades of robes, and the titles by which they are known. There was --room, therefore, for the jury to infer that there was no such absolute standard as plain seasonable No. Is, without Chouteau’s name, or that it had- a wide scope as to the quality of the goods, or that the plaintiffs did not make out a specific difference between the goods tendered and that standard. That verdict has deen sustained by a justice of this court at special term, in the exercise of his discretion. And even if we would have come to a different conclusion sitting in place of the jury, that would not. warrant an interference with the verdict. (Stoddart agt. — 263 — Long Is. R. R. Co. 5 Sand. S. C. R. 180 ; Dent agt. Farmers Bank at Bridgeport, 27 Barb. R. 337.) There certainly is no such preponderance of evidence as to induce us to think that the verdict of the jury originated in either passion, prejudice or mistake (Cohen agt. Dupont, 1 Sandf. S. C. R. 260). They were directed to confine their attention to a single issue, in the clearest terms, and were expressly warned against taking into consideration the fact that the goods tendered were those in the store mentioned in the memorandum. It is said, however, that the jury were allowed to hear and were not directed to disregard certain testimony admitted to establish an issue made bj the defendants of a mistake in the contract, with a view to its reformation, It is very evident that the court can never exclude relevant testimony because it does not establish at once the issue to which it relates. Tbe different links must be introduced in succession. The party against whom it is introduced is amply protected against any prejudice, by his right to call on the court to direct the jury to disregard it for all purposes, where it is not prima facie evidence of any material issue. Where his counsel neglects tó do so, the court has a right to presume he does not think the evidence of sufficient importance to require such a caution. It is no ground of complaint that the court in such a case has not volunteered to warn the jury against being misled, or a reason to grant a new trial on the ground of an oversight. Every exception in the case bears on matters not relating to the sole issue submitted to the jury. In reference to the evidence therefore rejected, not bearing on such issue, although competent for other purposes, no exception would lie (Purchase agt. Mattison, 6 Duer’s R. 587). An exception was taken to a witness being required to answer : “ What the quality of certain robes bought by him from the same lot as those bought by the plaintiff was 1" upon the ground that the defendants admitted in their answer that the latter did — 264 — not correspond with the contract. Whereas the answer in its second defence alleged a tender to and refusal by the plaintiffs of the buffalo robes agreed to be sold, which took away the ground of such exception. The plaintiff Murphy, was prevented from testifying whether anything was said in his negotiation with the defendant Funke, about knowing what such robes were. That was claimed to be admissible, because such defendant gave as a reason on his cross-examination by the plaintiffs’ counsel for not having stated that such robes were plain seasonable No. 1, that he did not know its meaning, which was quite different from his stating that as a reason at the time. A dealer in robes (Herbeck) was asked what he regarded as plain seasonable No. 1 robes ? upon which he certainly had a right to express his opinion as an expert. The defendant Funke, was asked whether in the negotiation of sale he stated what the quality of such goods was ? which was admissible to contradict a previous statement of the plaintiff Murphy, that Funke gave him a statement that they were plain seasonable No. 1. These constituted the only exceptions to testimony except one to the exclusion of a question put to the plaintiff Murphy, to detail a conversation by which he and the defendant Funke, got at the price of the goods, which was entirely immaterial. The verdict of the jury being warranted by the testimony, and no exception to evidence being well taken, it will not be necessary to consider the other views taken by the counsel for the defendants. The grave questions whether the contract was not void under the statute of frauds ? Whether a particular parcel of goods in a particular store only was sold ? Whether the use of the words plain seasonable No. 1, made a representation or a warranty ? and if the former, whether the defendants were liable without proof of a fraud ? or if the latter, whether the refusal by the plaintiffs to receive the goods did not rescind the contract ? are not necessary to be passed upon. — 265 — The order denying a new trial, and the judgment, must therefore be affirmed, with costs.