Barton v. Kane

By the Court, Dixow, C. J. This case abounds in exceptions, many of which merit no discussion. We shall speak only of such as do. Whether leading questions shall be permitted rests in the sound discretion of the court in which the trial is had, and decisions with respect to them are not the subject of exception. The testimony of the witness Schrauber, that the plaintiff, about the same time, forwarded to other purchasers cigars, the ‘same in kind as those furnished the defendant, and that those purchasers made no complaint that the cigars received by them were damp, unseasoned or unfit for use, should have been excluded. It was res inter alios acta, and wholly incom - [43] petent. Starkie on Ev. (4th Lond. Ed. 1853), 618 et seq.; Carter v. Pryke, Peake’s C., 95; Holcombe v. Hewson, 2 Campb., 391; Barden v. Keverberg, 2 M. & W., 61; Smith v. Wilkins, 6 C. & P., 180 [25 E. C. L., 344]; Delamotte v. Lane, 9 C. & P., 261 [38 E. C. L., 110]; Ganson v. Madigan, 15 Wis., 144. No doubt, merely irrelevant evidence, that wbicb bas no tendency to influence a verdict either way, does not vitiate. It must appear that the party objecting was or may have been injuriously affected. Dunlap v. Edwards, 29 Miss., 41; Routh v. Bank, 12 S. & M., 190; Lobb v. Lobb, 26 Penn. St., 331; Morris v. Runnels, 12 Texas, 178; Manny v. Glendenning, 15 Wis., 50. And this presents tbe only difficulty about the evidence in question. It is, whether the exceptions were so taken as to save the objection. Of the three questions asked the witness, only two, the first and third, were objected to. Those questions and the answers were merely irrelevant. The second and really obnoxious question was put and answered without objection. If we consider a specific objection to each question necessary, the point is lost. If, however, we regard the objection to the preliminary question, which ought to have been sustained, as going not merely to that question but to the improper testimony which immediately succeeds and springs naturally from it, then nothing has been waived by the defendant. The strictest rules might require that the former course should be pursued; but we incline to sustain the latter, and therefore hold the exceptions to have been well taken. The motion for judgment of nonsuit should have been granted. The cigars forwarded exceeded the quantity ordered. The order was for 5,000, but the plaintiff sent 5,625. This was no compliance with the order, and imposed no obligation on the defendant, without showing an acceptance in fact by him after the cigars were received, the burden of which was upon the plaintiff. To constitute a delivery to the carrier a delivery to the consignee, so as to pass the title and make the consignee liable for goods sold and delivered, the goods must cor [44] respond in quantity as well as quality, with those named in the order. Bruce v. Pearson, 3 Johns., 534, and Thompson v. Downer, 2 Hill, 137, are clear upon this question; and though the latter was reversed in the court of errors (6 Hill, 208,) the main point of reversal cannot arise here. There can be no pretense that the 625 extra cigars were sent out of an abundance of caution, and to insure a scriptural compliance with the order. They were sent to fill up the case, and the defendant was charged with their price. To entitle himself to recover under these circumstances, the plaintiff should have shown that the defendant actually received and accepted the cigars sent, upon the terms indicated in the plaintiff’s letter notifying him of the consignment. When goods ordered prove defective in quality, it is, in general, incumbent on the purchaser to notify the seller of his non-acceptance on that ground; else he is deemed to waive the objection, and to consent to keep and pay for them according to 'the terms specified. In such case it is considered sufficient evidence of acceptance, that the purchaser has not returned or offered to return the goods, or notified the seller of his nonacceptance. But whether the same rule of evidence should be applied where the quantity, known to the seller, is greater or less than that ordered, may well admit of doubt. Defects in quality may exist without the seller’s knowledge. There is nothing in such circumstance which necessarily implies bad faith or a disposition on his part not to fulfill the contract. But where he knowingly sends more or less goods than are ordered, he is guilty of an intentional violation of the contract which he undertakes to perform, and his conduct savors of bad faith ; and it would seem that he has no right to presume that the purchaser will accept, or to rely on notice of refusal.. He must show an actual acceptance, by proving either that the purchaser retained and used the goods or that he did some other act from which his assent may be presumed. The non45 suit, therefore, at the time it was moved, was proper and should have been granted. But whether we would now reverse the judgment on. that ground is by no means certain. It seems to be well settled, that if the defendant, after a motion for a nonsuit, himself supplies the evidence on the want of which his motion is founded, he cannot have a reversal upon the technical ground that such evidence was not before the court when. the nonsuit was asked. Smith v. Compton, 6 Cal., 24; Hyland v. Sherman, 2 E. D. Smith, 234; Dodge v. McDonnell, 14 Wis., 553. If the defect in the plaintiff’s evidence was cured by the testimony of the defendant as to the contents of the letter of the 29th of December, it is too late to urge the refusal to nonsuit as ground of error. Whether this effect should be given to his testimony need not now be determined, since the judgment must be reversed for reasons already stated. It was the opinion of a majority of the senators in Downer v. Thompson, 6 Hill, 208, that refusing to accept on other grounds, without assigning that as a reason, was a waiver of all objection because the quantity sent exceeded that ordered. The defendant, however, does not testify that he placed his refusal solely on the ground that the cigars received were inferior to the samples. He thinks he mentioned that more were sent than ordered. That will be a matter for the jury to consider. The court was right in refusing to permit the defendant to give secondary evidence of the contents of the same letter. To entitle one party to give evidence of the contents- of a private document in the hands of another, in cases not within the exceptions, reasonable notice must be proved to have been given to the party in possession to produce it at the trial; and notice at the trial, without showing that the party has the document with him in court, is insufficient. Starkie on Ev., 554, 560; 1 Greenleaf on Ev., §§ 560, 562. Here the witness and counsel answered that they had not the letter. .Yet if the judge had been wrong in excluding the secondary [46] evidence, tbe error was cured. Tbe defendant was afterwards permitted to give tbe evidence without objection. Barringer v. The People, 14 N. Y., 593. Judgment reversed, and a new trial awarded.