Hoover v. Cary

Given, J. 1. Sales: agree-Sons'declara' I. No question is made but that the plaintiff’s agents took an Excelsior reaper and twine binder, six foot cut, to the home of the defendant, and there set it up and left it. The plaintiffs contend that it was so taken and set up in pursuance of the alleged verbal contract, and that thereby the same was delivered to the defendant. The defendant claims that the machine was brought to, set up, and left upon his premises under permission given [496] by bim, for the purpose' of being exhibited by the plaintiff’s agents as a sample machine, and not in pursuance of any contract of purchase with him, nor as a delivery to him. The appellant called one Murphy, who testified that he came to-the place where Mr. Warran was setting up the machine, and had a conversation with the appellant at a point some thirty feet distant from where Warran was at work, and then asked the appellant -if he had bought the machine, and he said, “No.” This statement was excluded on the appellees’ objection. The witness was further asked “What did Cary say to you in that conversation there, while they were putting up the machine?” to which the appellees’ objection was sustained. One Worthington testified that he was present when they were setting up the machine, and heard a conversation between the appellant and one Halleck, some thirty feet distant from the man at work on the machine. He was asked, “In that conversation, what did Cary say about the machine being there?” to which the appellees’ objection was sustained. “The contention of the appellant is that this is proper testimony because — first, it is part of the res gestee of the bringing and setting up of the machine upon his premises ; second, it is a part of the res gestee of the possession of said machine.” The appellant cites a number of authorities showing that, when such declarations form a part of the res gestae, they are admissible in evidence. These conversations took place several days after the time at which the arrangement was made, in pursuance of which the machine was brought to, and left upon the appellant’s premises, and there is no question but that there was a delivery of the machine to the appellant if there was a contract of sale as alleged. The contention is whether there was such a contract. The appellant cites the rule to be as follows: “To make the declarations a part of the res gestae, they [497] must be contemporaneous with the main fact.” Conceding the rule to be as claimed, we think the declarations sought to be introduced are not a part of the res gestee. They were not made at a time, nor so near to that at which the agreement for the bringing of the machine was made, as to reasonably exclude the idea of deliberate design. The arrangement under which the machine was brought and set up was made on the eighth day of June, while the machine was not set up until several days thereafter. There was no issue as to the bringing and setting up of the machine. The appellant contends upon the authority of Taylor v. Lusk, 9 Iowa, 445, that his declarations sought to be proven were admissible. In that .case it is said: “The cases cited by the appellees are for the doctrine that the declarations of a person while in possession of personal property, explanatory of such possession, as, that he held it as the agent or for another, or in his own right, are admissible in evidence against the party claiming under him;” citing Ross v. Hayne, 3 G. Greene, 211. It is further said: “The cases all agree in holding, however, that the declarations must be made at the time of the possession, must be simply explanatory of it, and not in regard to the contract under which the possession is held.” The declarations of the defendant, sought to be proven by him in his own behalf, as stated by counsel, were “that he had not bought the machine; that he had just given Jackson the privilege of setting it up there as a sample machine, in order to show it to the people of the neighborhood.” Such declarations were not explanatory of the defendant’s possession, for he denies ever having had possession. They were not offered as evidence against a party claiming under him, and were in regard to the alleged contract. They were not within [498] the rule announced in Taylor v. Lusk, nor in any of the cases cited as following that. 2. practice: eyi^witness? ' II. The appellant, upon cross-examination of witness Davis, asked him if he had not made certain statements to persons named out of court, which he denied; whereupon the appellant called the persons named, who testified to statements made to them by Davis. The appellees were permitted, over the appellant’s objection, to have Davis state his version of the conversation which he had with the person named. We see no error in permitting Davis to be recalled as to what he said to those persons. One Timberlake, called by the appellees, testified to a conversation with the appellant concerning the machine in question at a time in June, 1886, when he sold him a Buckeye, Altman, Miller & Co. machine. The appellant complains that he was not permitted to show that the written order for the last named machine was in the handwriting of one Hall, and not of the witness Timberlake. Timberlake fixes the time of the conversation with the appellant concerning the appellees’ machine as being at the time when he “went there to sell him a machine.” That Hall may have filled the order was immaterial, and we think properly excluded. 3. Account: time of payment demand. III. The appellant complains of the second and fifth paragraphs of the court’s charge. In the second, the court instructed to the effect that if the yerbal agreement alleged was proven, and the jury found that the plaintiffs caused the machine to be taken to the defendant’s premises in pursuance of that agreement, that the same was received and kept by the defendant, “and it is further shown by the evidence that thereafter, and before the commencement of this action, the plaintiffs, through one of their agents, demanded of the defendant that he should pay for said machine or execute his notes to the plaintiffs for the purchase price thereof, and such [499] demand was refused by the defendant, then the plaintiffs will be entitled to recover.” The appellant complains of this instruction, because it did not tell the jury that, before the plaintiffs’ ■claim could be converted into a money demand, they must find that sometime had been agreed upon, either fixed or reasonable, for the execution of the notes, and that the time had expired before the commencement of the suit. The allegation is that the machine was to be paid for in cash orto be settled for by notes on delivery, and a demand for payment or notes and a refusal at any time after deliveiy made the plaintiffs’ claim a money demand, ■ In the fifth instruction the jury were told in effect that if the evidence failed to show that the machine wás delivered under the alleged agreement, ‘ ‘but does show that the defendant permitted said agent to place said machine upon his premises, to be used and exhibited by said agent as a sample machine, for the purpose of selling other machines, then plaintiffs cannot recover. The appellant contends that this is in effect saying to the jury that, unless the evidence shows that the machine was brought upon the premises to be used as a sample machine, the plaintiffs can recover. If alone, it might be so construed, but other instructions given as to what was necessary to entitle the appellees to recover, made plain what the plaintiffs must prove to support their claim. We have considered all the rulings assigned as error that are urged in argument, and, failing to find any errors prejudicial to the appellant, the judgment of the district court is affirmed.