Gerber v. Probey

Mr. Chief Justice Shepard delivered the opinion of the Court: The court erred in refusing to give to the jury the special instructions one, two, four, five, six, and seven asked by plaintiffs, and also in the charge given in lieu thereof, that was excepted to. By the terms of the contract offered in evidence the title to the automobiles delivered to defendant was expressly retained by the Michigan Buggy Company; and this was a valid provision. Harkness v. Russell, 118 U. S. 663, 30 L. ed. 285, 7 Sup. Ct. Rep. 51; Wall v. DeMitkiewicz, 9 App. D. C. 109—122. This title passed to the Pennsylvania Sales Corporation by the transfer of the Michigan Buggy Company, and afterwards by that corporation to the plaintiffs. The notes which the defendant gave for the accommodation of the Michigan Buggy Company, it was expressly contracted, were not in payment for the cars delivered. The giving of these notes did not affect the terms of the contract, retaining title. As no title to the automobiles could pass except upon compliance with the terms of the contract, the failure to return these notes cannot change its effect. Wall v. DeMitkiewicz, 9 App. D. C. 109-125. [407] The defendant’s claim to hold the cars under the alleged verbal agreement with Palmer, the President of the Michigan Buggy Company, cannot be supported. The contract expressly provided that defendant “should make no claim for freight paid, storage services, or anything else done or performed in or about said property,” and it was further expressly provided that this contract may not be waived, modified, or changed by any verbal understanding or agreement, or in any way except by writing between the parties thereto, or indorsed thereon. It was also error not to give the third special instruction asked by plaintiffs regarding the use of the corporate name of the Michigan Motor Company by the Michigan Buggy Company, for the uncontradicted evidence showed that the Michigan Motor Company, with which the contract was made, was but a trade name used by the Michigan Buggy Company in carrying on the automobile part of its business. It was the owner of the automobiles, and adopted and used the name, “Michigan Motor Company,” for convenience. The admission of the evidence of Max .Robinson impeaching the plaintiff Gerber was error. The witness was a resident of .Martinsburg, West Virginia, and Gerber of Detroit. The witness was not familiar with Gerber’s reputation in the community where he lived, and made no pretense that he was. He had simply heard Gerber’s reputation discussed by some persons living elsewhere, and chiefly manufacturers, and upon this based his statement that his reputation for truth and veracity was bad. An impeaching witness should know the general reputation of a witness in the community in which lie lives. His reputation among a limited class of people residing elsewhere was not competent. Williams v. United States, 168 U. S. 382—397, 42 L. ed. 509—515, 18 Sup. Ct. Rep. 92; Brown v. United States, 164 U. S. 221-224, 41 L. ed. 410, 411, 17 Sup. Ct. Rep. 33; Teese v. Huntington, 23 How. 2—13, 16 L. ed. 479—483; Douglass v. Tousey, 2 Wend. 352—354, 20 Am. Dec. 616; 1 Greenl. Ev. 16th ed. sec. 461 d. (3). [408] Tbe impeaching testimony of tbe witness Diggs was not objected to. These are tbe only assignments of error which it is considered necessary to notice. The judgment is reversed, with costs, and the cause remanded for a new trial in conformity with this opinion. Reversed.