Mears v. Daniels

Watson, J. The exceptions are considered in their numerical order. Exception I. At the time of the transactions in question the plaintiff was a resident of the town of Marshfield.' The — 96 — logs and lumber that his evidence tended to show he owned were located at the Lamberton mill in the town of Cabot, and by statute were taxable in the town where situated. P. S. 510. If the plaintiff owned this property, it was his duty to return the same by his inventory to the listers in that town for taxation. P. S. 543. His failure to return any inventory there had some tendency to show that he did not own the property. Richardson v. Hitchcock, 28 Vt. 757; Hubbard v. Moore, 67 Vt. 532; Jaquith v. Shumway’s Estate, 80 Vt. 556. Exception II. The fact shown by plaintiff’s testimony that he did not include the logs and lumber in his inventory returned to the listers in the town where he resided could do him no harm. The property was not there taxable. Exceptions III, IV. The question asked the plaintiff as shown by each of these, exceptions was, whether in the year 1908, he put into his inventory in the town of his residence anything as due from the defendant. In each instance the plaintiff answered in effect that he could not tell Whether the questions were proper or not the answers were harmless. Marcy v. Parker, 78 Vt. 73. Exception V. The defendant produced a certain mortgage of personal property, dated July 14, 1908, given by F. G. Lamberton to the plaintiff, together with a promissory note for one thousand dollars, secured thereby. Before offering the same in evidence, the plaintiff was asked by the defendant, subject to objection and exception, whether sometime later he cancelled the note and discharged the mortgage, and answered, “yes sir.” The objection made was, (1) that by this examination the plaintiff was made the defendant’s own witness; and (2) that the mortgage was not yet in the case and plaintiff objected to its being “read in.” The answer to the first objection is, that by statute one party to a civil action may compel the adverse party to testify as a witness in his behalf, and may examine him under the rules applicable to the cross-examination of a witness. P. S. 1596; Childs v. Merrill, 66 Vt. 302; Swerdferger v. Hopkins, 67 Vt. 136; Hamilton v. Gray, 67 Vt. 232; Jennett v. Patten, 78 Vt. 69. If the second objection ever had any force (which we do not decide), it was rendered harmless by the subsequent introduction in evidence of the note and — 97 — mortgage by which it appeared that they were cancelled and discharged. Nye v. Daniels, 75 Vt. 81. Exception VI. The plaintiff, having testified that his logs were to be sawed and the lumber put on the cars by Lamberton for nothing, was asked in cross-examination, subject to objection as immaterial, whether in order to do this Lamberton did not have to have hired help. The answer is not shown by the record, hence the exception is without avail. Exception VII. F. G. Lamberton, called as a witness by the plaintiff, testified in direct examination that the plaintiff owned the lumber cut from the. “Mears logs”, and that the witness was acting for him under a contract to saw and deliver it. The defendant claimed that Lamberton was the real owner of this lumber, and that his testimony in respect to the ownership and his contract with the plaintiff was false. In cross-examination, under objection and exception, the witness was permitted to testify that those logs were in his mill yard the first day of April, and that he listed them in his inventory. In view of the direct testimony, this evidence brought out in cross-examination was proper as tending to discredit the witness. Exception VIII. The same witness was asked in cross-examination, whether the funds used by him from February till April, until the time he went to sawing and lumbering, came from the defendant, and answered in the affirmative. Thé question “was objected to by the plaintiff as not affecting his case and especially that it does not meet defendant’s own theory of the case, either in form or substance.” Assuming this exception to be well taken, the grounds of the objection show that the plaintiff could not have been injured by the evidence. Exception IX. The same witness, having testified to the sawing of the “Mears logs and the Daniels logs” and that they were not kept separate, was asked in cross-examination, subject to exception, whether he treated that stock of logs and handled them all as if they were his own, and answered that he did. This evidence was proper in cross-examination for the same reason as that under exception VII. Exception X. The same witness, having testified in cross-examination that he sold the chair-stock to the defendant at — 98 — certain prices, and that the latter returned to the witness the amount received for each car, was asked whether the defendant credited the witness the amount of the car on the bill which he returned, and answered in the affirmative. The question was for the purpose of testing the memory of the witness, and permitted subject to exception, the ground of the objection being that the bills would show for themselves. It was said by Judge Redfield in Stevens v. Beach, 12 Vt. 538, that it is no doubt competent to put almost any question upon cross-examination, which may be considered important to test the accuracy of the witness. We think the rule is correctly stated by Chief Justice Shaw in Hathaway v. Crocker, 7 Met. 262, 266: “In cross-examination, an adverse party is usually allowed great latitude of inquiry, limited only by the sound discretion of the court, with a view to test the memory, the purity of principle, the skill, accuracy and judgment of the witness; the consistency of his answers with each other, and with his present testimony; his life and habits, his feelings towards the parties respectively, and the like; to enable the jury to judge of the degree of confidence they may safely place in his testimony.” Unless it appears from the record, which it does not in this case, that the discretion of the trial court in the particular instance was abused, its exercise is not the subject of review. Hathaway v. Goslant, 77 Vt. 199. Exception XI. During cross-examination the same witness was shown a slip pasted in the back of an account book, and, having testified that the same was made by him, was examined, subject to exception, and testified that in the figures thereon he had given the defendant credit for $1,500. which defendant paid to the plaintiff in February, 1908; that in arriving at the figures on the slip, the witness charged on one side of the account to the defendant all the lumber of every description, which witness had shipped to him; and that from the figures of the witness there made the total amount he was owing the defendant was $7,239.74. In permitting such examination there was no error. The facts thus elicited tended to discredit the evidence in chief of the witness respecting the ownership of the lumber in question and his contract with the plaintiff. Cady v. Owen, 34 Vt. 598. Exception XII. The same witness, having testified that, — 99 — by his contract with the plaintiff, he was to put the plaintiff’s hard wood logs into the pond, saw them into boards, put the boards into stacks, cut the chair-stock and stack it ready to be put onto the wagon, without compensation from the plaintiff, was properly cross-examined regarding the fair price for doing the work. It bore upon the probability of the truthfulness of his story. Exception XIII. The same witness, having testified on cross-examination that he had a petition in bankruptcy pending, was asked, subject to exception, whether he filed a claim there, signed by him, against the plaintiff, “for lumber sold which should apply on my indebtedness to him and the balance if any should be paid to me, the amount of lumber sold and not credited estimated to be in the sum of $1300”, and answered, “I don’t know as I did. Like to see the paper.” This exception stands as do exceptions III and IV, and for the same reason is without avail. Exception XIV. The defendant introduced in evidence & certain contract in writing between himself and the witness Lamberton in reference to lumber operations between them. Subject to objection on the ground that the contract was in writing, the defendant testified that he had some arrangement with Lamberton by which he was to furnish money to get some logs in there. Since the same thing appeared from the written contract in evidence, this testimony could do no harm. The defendant was further permitted to testify, subject to objection and exception as immaterial, that he did furnish money, the first, $1,250 to buy land, and the next, on February 18, $100. The defendant claimed that the “Mears logs”, so called, were in fact purchased and owned by Lamberton; that as between the defendant and Lamberton no balance was due; that the “Mears logs” were manufactured with money advanced by the defendant to Lamberton at the plaintiff’s request; that in February, 1908 the defendant paid to the plaintiff the sum of $1,500. in full settlement of all claim of the plaintiff in and to the logs and lumber, and that thereupon the latter agreed to look to Lamberton for the balance of his account. In view of this claim, it cannot be said that the above evidence as to furnishing money was immaterial, and the exception is without force. Exception XV. The defendant was allowed to testify to — 100 — two separate conversations had by him with the witness Lamberton, the first in respect to where he got his money with which to buy the Fifield and Freeman logs (which from the exceptions we understand to be the same logs hereinbefore called the “Mears logs”), and the second, as to who was going to furnish money with which to manufacture those logs;, that in answer to the first question Lamberton said “Mark Mears helped him buy them;” and in answer to the second question, Lamberton said he “supposed Mark would have to;, he said — in another breath— that Mark said that I would send up the money. I told him I didn’t want he should saw any of them, or put any of my money into them until we found out who was to have them, and didn’t want he should mix them with my logs or with my lumber; and he wanted when I went home that I should stop and see Mark.” This testimony of what Lamberton said on the two occasions to which reference is made had a tendency to impeach him as a witness and was properly received. Exception XVI. The defendant, having testified that he sent money to Lamberton with which to saw the logs, giving some dates and amounts, was permitted to testify, subject to exception, to what money he sent Lamberton, and the purpose. This was in line with the theory of the defence and proper.' Exception XVII. The defendant, having testified on direct examination in his own behalf that he was at the Lamberton mill during the summer of 1907 and saw the men working there, was permitted to testify, subject to exception, that twelve or thirteen men were working and that he knew when pay day came. It was not error to receive this evidence in connection with that under the preceding exception showing that the money or some of it sent to Lamberton by the defendant was to finish the “mixed” lumber, and “to jigger the chair-stock”. Exception XVIII. The defendant was allowed to testify on re-direct examination, subject to exception, that he went over the lumber accounts from time to time with Lamberton and that the latter never raised any question as regards two per cent in cash and five per cent discount, and that they never had any dispute over accounts. The exceptions do not show that any ground of objection was given, nor do they show any — 101 — thing regarding the cross-examination. Therefore error does not appear. Exception XIX. The plaintiff was called to the stand by the defendant and testified, that aside from the balance of book account and grocery account the plaintiff was holden for Lamberton as indorser — “there was this book account and this note I have got, that was all”; that at the time of taking the chattel mortgage Lamberton was owing him grocery bills or book account, “$450 for my chair waste money” used up, which is not reckoned in the store account; that the chattel mortgage had nothing to do with the lumber deal; that Lamberton was not owing him anything aside from the book account and what plaintiff was holden for on notes — all told more than $1000,— nearer $2000, or more. On the above testimony the court admitted in evidence the chattel mortgage and the promissory' note, to which plaintiff excepted. The ground of the objection does not appear. As before seen the defendant’s evidence tended to show that in February, 1908, the defendant paid to the plaintiff the sum of $1,500. in full settlement of all claim of the plaintiff in and to the logs and lumber, and that the latter thereupon agreed to look to Lamberton for the balance of his account. The chattel mortgage produced, dated July 14, 1908, was given by Lamberton to the plaintiff, together with the note for $1,000 secured thereby. The taking of this note and mortgage from Lamberton by the plaintiff at that time was a circumsiance-tending to corroborate the defendant’s testimony touching such settlement between him and the plaintiff and the agreement by the latter to look to-Lamberton for the balance of his account, and was properly received. Exception XX. The plaintiff claimed to recover for chair-stock, amounting to the sum of $483.88, which was destroyed by fire at the Lamberton mill in July, 1908. Plaintiff’s evidence tended to show that the defendant placed with Lamberton orders for chair-stock to be cut from certain patterns furnished by him, and at a certain price per piece, delivered on board cars by Lamberton at Marshfield for transportation to Gardner, Massachusetts, and seven carloads were so cut and shipped at his order. In December, 1907, Lamberton cut from the “mixed” lumber a car of chair-stock under this order and then informed the — 102 — defendant that he was ready to ship. Whereupon the defendant told Lamberton he had been notified that the sheds at Gardner were full and that the company to which he was selling did not wish him to ship it; that the chair-stock remained in the mill during the remainder of the winter and until the spring of 1908,. subject to the orders of the defendant. It being in Lamberton’s way for the spring sawing, he said by telephone to the defendant, “Why not put it down in the barn under cover?” to which defendant replied, “All right, put it down there.” Lamberton removed the chair-stock to the barn, where it remained until destroyed by fire. The selling price was so much per piece* f. o. b., Gardner, delivered on board cars at station (Marshfield) some four or five miles distant, less freight to Gardner. The plaintiff knew of this contract with the defendant for the “mixed” lumber but not of the above facts. The court charged the jury that this lumber was never delivered to the defendant, the defendant never received it, and therefore no recovery therefor could be had under the declaration in this action for goods sold and delivered. To which the plaintiff excepted, claiming that the above evidence showed a complete sale and should be submitted to the jury. Since the contract of sale specified the place of delivery, namely, on board cars at Marshfield station, a place four .pr five miles from the mill, until the chair-stock was placed on board cars at that station by the vendor something remained to be done by him to complete a delivery under the contract, and title to the property did not vest in the defendant. Brunswick-Balk Collender Co. v. Herrick, 63 Vt. 286. It remains to be considered whether, as claimed by the plaintiff, there was evidence tending to show a waiver by the defendant of a delivery at the specified place, and an acceptance by him of the property under the contract at the barn to which it was removed. When the. chair-stock was cut ready for shipment in December, 1907* and the defendant notified thereof, he told Lamberton in effect-that it could not then be shipped, and the reason why. The exceptions go on to state, “that the chair-stock remained in the mill during the remainder of the winter and until the spring of 1908 subject to the orders of the defendant.” This, however* means no more and has no other tendency, than that it remained — 103 — there ready to be delivered on notice from the defendant. It has no tendency to show a waiver by him of the specified place of delivery, or an acceptance of the property. The only other act of the defendant relied upon as evidence of such waiver and an acceptance of the property was in the following spring, some months later, when Lamberton asked him over the telephone, “why not put it (chair-stock) down in the barn under cover?” and defendant replied, “All right, put it down there.” The case does not state who owned the barn; yet, as the burden of proof is with the plaintiff, it will be inferred that it was owned by Lamberton, the same as the mill. That the barn was near the mill fairly appears from the facts that the chair-stock “was destroyed in a fire at the Lamberton mill,” and that it was in the barn when so destroyed. So far as appears, the full possession and control of the chair-stock was in Lamberton after its removal to the barn, the same as before. There was nothing in the conversation over the telephone indicating an intention by either party to have such removal constitute a delivery of the property, nor that the defendant intended to accept the property at the barn, thereby waiving the provision of the contract requiring its delivery at the place specified four or five miles away, involving work and transportation at no inconsiderable expense. Giving the conversation the most favorable construction to the plaintiff it amounted to no more than an assent by the defendant to the removal of the chair-stock to the barn to be housed until delivered according to the contract, instead of remaining in the mill where it was. We are of the opinion that in the ruling- of the court on this phase of the case, there was no error. See Brunswick-Balk Collender Co. v. Herrick, cited above; Kitson Machine Co. v. Holden, 74 Vt. 104. Judgment affirmed.