Flanders v. Cottrell

Lyon, J. I. A question raised on the complaint will first be disposed of. It is averred therein that Mr. Noonan sold the press to Cameron, Amberg & Co. for the defendants and at their request, and no other or different cause of action is stated. The averment is entirely unproved. The question litigated on the trial was, not whether Noonan sold the press, but whether he was instrumental in enabling the defendants to sell it. This question was sharply litigated; much testimony in respect to it was given by both parties; and it was submitted to the jury as the controlling question of fact in the case. All this was done without objection by either party. Indeed the question was thus submitted at the request of the defendants. Under these circumstances, it is too well settled to admit of doubt or controversy, that the pleadings may at any time be amended to conform with the issue really tried, or the variance may be wholly disregarded. II. The next question arises upon the ruling of the court against the admissibility of certain testimony contained in the deposition of Mr. Cameron. The interrogatories and the answers thereto thus ruled out, fairly construed, amount to an offer or attempt to prove by the witness that whatever Noonan said to induce him to buy a press of the defendants, had no weight with him, but that he was prompted by other influences to make the purchase. We think that the testimony was properly rejected. The witness was allowed to testify to all facts within his knowledge, bearing upon the issue ; and it was for the jury, and not the witness, to determine from all of the facts proved, whether the sale of the press was effected through the instrumentality of Noonan, or otherwise. True, there are cases wherein witnesses have been held competent to testify that certain acts of theirs were free from a fraudulent or malicious intent. Wilson v. Noonan, 35 Wis., [571] 321, is one of them. But these cases all rest upon the proposition that the intent is a fact, and not a mere opinion or a mere inference from certain mental processes. Whether those cases rest upon a solid basis or not, we are very clearly of the opinion that the testimony in this case which the court rejected, did not relate to an existing fact, but was merely an inference drawn by the witness from his own mental processes. We are not aware of the existence of any rule of evidence which will justify the admission of such testimony. III. The only remaining question for determination is presented by the refusal of the court to instruct the jury, that, because Noonan failed to find a purchaser at the advertised rates, he is not entitled to commissions on the sale to Cameron, Amberg & Co. Taking the contract between Noonan and the defendants to be as testified to by the defendant Cottrell, Noonan was entitled to the commission on the sale, provided he was the means of selling the press. We find in the contract no stipulation that he was not to have such commission unless the press sold for $2,600. The right to the commission depended upon but two conditions, which were, 1st, that a sale should be made, and 2d, that it should be made through the instrumentality of Noonan. The circuit court so instructed the jury. We fail to find any error in this record, and must therefore affirm the judgment. By the Court. — Judgment affirmed.