Hodgkins v. Chappell

Lord, J. It is entirely obvious that the real question in controversy in this case was the comparative credibility of the plaintiff and of the defendant Storer, and this fact made it the more important that the independent testimony sustaining the view of one side or the other should be carefully scrutinized and kept within strictly legal limits. We are unable to see that in this respect there was any error. 1. The first point made by the defendants is that the letter from Storer to Chappell should have been admitted in evidence, and their claim is, that it should have been regarded either as part of the res gestes, or as a part of a correspondence of which the telegram was the other part, which telegram was communicated to the plaintiff. What res gestee it was part of, the defendants do not explain to us. It was not a part of the contract between the plaintiff and the defendants, for both parties agree that the contract for the first lot of fish, whatever it was, had been fully made and completed between the parties before the lettei was written. It was simply the declaration of one of the defend [201] ants to his co-defendant, in the absence of the plaintiff, and without the plaintiff’s knowledge. Nor does it appear to be any part of any correspondence which was put into the case. The plaintiff did not introduce the telegram in evidence. He simply testified that Storer told him he had received a telegram in consequence of which he concluded to purchase the remainder of the lot of fish. When the defendant Storer testified, he produced the telegram; but there is no reference in the telegram to his letter to his partner, nor does it appear that the plaintiff ever did have or ever could have had any knowledge of the contents of such letter, or that any letter had been written from one partner to the other; and the admission in evidence against him of the private conversation or correspondence between the defendants would be in violation of his rights. 2. The next point made by the defendant is that the evidence of the condition of other fish, though bought at the same time and kept in the same place, for the same period, was incompetent, as irrelevant and collateral. In examining the validity of this objection, it is important to understand at what stage of the case and under what circumstances this evidence was admitted. The plaintiff in chief had offered nothing as to the particular condition of the fish, nor the temperature in which they had been kept. The defendants in their defence introduced evidence “ tending to show that these fish had been exposed to great changes of weather, and, specifically, evidence of the state of the thermometer every day from November to February; that their condition, when received in New York and thawed, showed that they had become tainted and spoiled before they were frozen at all, and that they had been thawed more than once after they were first frozen.” And the bill of exceptions states in terms that it was “in reply to the defendants’ evidence ” that the court permitted the plaintiff to testify that the fish “ were kept in a certain shed in Rockport, from November to the time they were sent to New York; that, during this time, other fish, bought at the same time as these and of a similar description, were also kept there, which were put in at the same time; and that these other fish so kept there did not thaw during the time specified, but were taken out in the spring in good order and condition.” [202] The evidence was not offered for the purpose of proving the other fish to be good; that matter was wholly immaterial and collateral; but it was offered for the purpose of meeting the defendants’ testimony, and of showing that it was not true, by showing such a state of the temperature of the place where they had been stored as to render the thawing, which had been testified to by the defendant, improbable, if not impossible. We presume that the record of the thermometer of which the defendants testified was made at Rockport, and perhaps in the immediate vicinity of the fish; but temperature by the thermometer is not determinable except by its influence upon mercury or spirit, and those are not the only substances upon which temperature has an effect, and we see no reason why the condition of temperature may not be determined by its influence upon other materials. The evidence, therefore, was competent and pertinent to meet the exact state of facts which the defendant had put in evidence. 3. The third exception taken by the defendant is to the admission of the testimony of the Eastern Railroad Company’s freight agent, who was permitted to testify that, on February 17,1872, five boxes of fish were shipped from Rockport marked “ Chapparel & Storer, New York,” and five marked “ W. Pearsall, New York,” and on February 20, 1872, three boxes marked to each of the same consignees. The principal objection made to this testimony by the defendant seems to be that it was admitted at an improper stage of the trial. It does not seem to be seriously contested that the evidence would not have been competent as a part of the plaintiff’s original case, as being one step in the proof of a sale and delivery.. But whether it should be admitted at a later stage was entirely within the discretion of the presiding judge. In this case, it is contended that the evidence, especially as introduced at the time it was, would necessarily tend to the corroboration of the plaintiff’s case, upon which the plaintiff had no right to offer corroboration, and which the facts proved had no legitimate tendency to corroborate. It is not improbable that this may be so. It was, however, within the power of the party to have asked specific and careful instructions as to the purposes for which it was admissible, and how far it could be used in support of the plaintiff’s case, and whafuses of it were improper ox [203] incompetent. But it does not appear by the bill of exceptions that any such instructions were asked, nor does it appear that full and ample instructions were not given, nor that the uses and purposes of the evidence were not exactly limited and qualified. Exceptions overruled.