Foote v. Woodworth

THOMPSON, J. I. The issue was whether the ruinous condition of the jars four or five years after the plaintiff purchased them was the result of improper burning in the process of manufacture, or was caused, as claimed by the defendant, by their having been put up and stored by the plaintiff for three or four years in a dirty and greasy condition. To meet this claim of the defendant the plaintiff improved Hammond as a witness whose evidence tended to prove that he had examined the jars in regard to their being greasy or 'not, and in making his examination had rubbed a piece of white paper around on the inside of some of the jars. The plaintiff offered this paper in evidence and it was excluded, to which he excepted. The plaintiff’s evidence tended to prove that, after being last used by him, the jars had been [221] packed in a storage house, and had remained there three or four years. To have rendered the paper admissible it must have appeared that the jars to which it was applied were then in substantially the same condition in regard to being dirty and greasy as they were when packed. There was no offer to show such was the fact, or to show when Hammond made his examination. It cannot be presumed that there was evidence in the case which made the paper admissible, for that would be to presume error when the presumption is to the contrary unless it is shown affirmatively by the record. We think the true rule is that, to assign legal error in the exclusion of evidence, the exceptions must show affirmatively that, in the then present aspect of the case, the evidence -excluded was admissible, without an offer to introduce other evidence which would make it admissible. Again, it does not appear that the paper would have tended to prove any fact beneficial to the plaintiff. It may have been perfectly clean, or it may have been discolored by dirt and grease, or it may have been in some other condition. There was no error in excluding it. Foster’s Exrs. v. Dickerson, 64 Vt. 233; Roach v. Caldbeck, 64 Vt. 593; Carpenter v. Willey, 65 Vt. 168. II. The extract from the charge to which the plaintiff excepted does not purport to be all that the court said on the subject of damages, and it is to be taken that the general rule in respect to the measure of damages in a case like this was correctly stated. The plaintiff claimed that the jars were then practically worthless, and that the defendant was responsible for their being in that condition; while, on the other hand, the defendant contended that their condition was not the result of his fault, but of the plaintiff’s negligence. By this part of the charge the jury were in effect told that if they found the defendant was liable, yet, if the ruinous condition of the jars was in part caused by the negligence of the plaintiff, [222] he could not recover for such damages as he had sustained by reason of his own negligence, but only for such as he had sustained by reason of the defendant’s fault. This was a proper caution in view of the respective claims of the parties. It was not reversible error to thus charge. III. There was no error in permitting the jury to correct their verdict in respect to costs. The jury went out of their province in awarding costs, and the court might, in the first instance, have treated that part of the verdict as surplusage. The motion in arrest of judgment was also properly overruled. Montgomery v. Maynard, 33 Vt. 450; Germond v. C. V. R. R. Co., 65 Vt. 126; Grotton v. Glidden, 84 Me. 589; 24 Atl. Rep. 1008; Allen v. Aldrich, 9 Foster (N. H.) 75; Tucker v. Cochran, 47 N. H. 54; Lincoln v. Hafgood, 11 Mass. 358; Hanson v. Jacques, 29 Ind. 208; Hilliard New Trials, 108, 118. ■ Judgment affirmed.