Thomas v. Howe

The opinion of the court was delivered by Wilson, J. This is an action of assumpsit, and the exceptions present the single inquiry whether the testimony offered by the defendant, to prove the value of the oxen which the plaintiff had of the defendant, was properly excluded by the county court. It is a well established rule of law that the evidence offered must correspond with the allegations and be confined to the point in issue. This rule supposes the allegations to be material and necessary, and it excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal [602] fact or matter in. dispute. The defendant claimed, and his testimony tended to prove, that at the time of the agreement to exchange oxen, the plaintiff as part of the agreement warranted his oxen. This was the only defence in the case. The points in the issue were the warranty, the breach of it, and the damages resulting thereupon. The testimony rejected by the county court did not, upon any principle tend to prove any point in the defence. It was evidently offered upon the question of damages, but upon this point the defendant could recover only the difference between the value of the property, and its value if it had been sound as warranted, and this question did not depend, in any respect, upon the value of the other oxen. We think the ease stands, in respect to the grounds of defence, and as to the relevancy of testimony, the same as if the defendant had commenced an action upon the warranty for the recovery of damages. It is urged by the defendant’s counsel that in this form of action the plaintiff can in no case recover more than he is in equity and good conscience entitled to. The relevancy of testimony is generally determined by the issue claimed in the action, and not by the form of the action. In Brown v. Sayles, 27 Vt. 227, cited by the counsel, the value of the wagon was an essential part of the contract, and directly in issue, and the doctrine of that case does not support the defendant’s exception. The judgment of the county court is affirmed.