McCormick v. Miller

By the Court. McMillan, J. The complaint alleges in due form, that the plaintiffs, partners, on or about the 25th of July, 1868, at the request of defendant, sold and delivered to him one four horse reaper of the value of two hundred and five dollars; that said sum has long since been due, and defen [446] dant refuses and neglects to pay the same. The defendant for answer, among other things “denies that the plaintiffs at the time stated in the complaint, or at any other time, sold and delivered to him any reaper.” The cause was referred for trial to George L. Otis, Esq., sole referee. Upon the trial before the referee, the plaintiffs, having introduced their testimony, rested; whereupon the defendant moved to dismiss the action for want of evidence; which motion, after argument, was granted by the referee, and judgment for defendant ordered. From the report of the referee, which is not set forth in the paper book, but is contained in the return to this court, it appears that the motion to dismiss was granted by the referee upon the ground that the testimony and proofs adduced by the plaintiffs failed to show a sale of the said machine to the defendant, and he could not upon such proof be held liable therefor.. Upon the report of the referee and a case settled before him, the plaintiffs made a motion in the district court to set aside such report, and for a new trial, upon the following grounds: First, that the report is not justified by the evidence, and is contrary to law ■, Second, errors in law occurring at the trial, and excepted to by the plaintiffs. The court, after argument, denied the motion, and plaintiffs appealed to this court from the order denying such motion. A trial by a referee is to be conducted in the same manner as a trial by the court. Gen. Stat., ch. 66, tit. 18, sec. 231, p. 482. An action may be dismissed by the court, where, upon the trial, and before the final submission of the case, the plaintiff abandons it, or fails to substantiate or establish his claim, or cause of action, or right to recover. Gen. Stat., ch. 66, sec. 242, subdiv. 3, p. 484. [447] In granting the motion to dismiss, the referee must have decided, as matter of law, that there was no evidence tending to show a sale of the reaper to the defendant, or that the evidence taken together so conclusively established the fact that there was no such sale to the defendant, that a finding to the contrary could not legally be sustained. Scofield v. Hernandez et al. 47 N. Y. 313. The parties immediately concerned in the transaction in regard to the sale of the reaper in question were John J. Rhodes, agent for the plaintiff, and Andrew Jordan. Without entering into a discussion of the evidence in detail, our conclusion is that the evidence at the close of the plaintiffs’ case shows clearly that it was the intention of the parties that the sale of the reaper in question should be to Jordan, and that by the delivery of the reaper to him, the property therein should pass to him only. It is perhaps to be inferred that Rhodes expected that the defendant Miller would become security for Jordan for the purchase price of the reaper, and sign the notes given by Jordan therefor, but there is nothing to show any such agreement on the part of Miller. The action was therefore properly dismissed by the referee upon the evidence submitted. The reception in evidence of the two notes in connection with the cross-examination of the witness John J. Rhodes,^ was proper ; they were part of the transaction claimed by the plaintiffs to have constituted a sale of the machine to the defendant. F or the same reason the statement given by the witness Jordan, on his cross-examination, as to what occurred between him and Rhodes at the time the reaper was obtained, were properly admitted in evidence. The witness John J. Rhodes testified, in chief, that the reaper went into Washington county on to lands owned by defendant. The witness Jordan also testified, in chief, that [448] the reaper was taken to Charles Miller’s place; it remained, there two years, and that he rented Miller’s farm. In view of this testimony, it was certainly proper for the defendant to ask Jordan, on his cross-examination, whether he rented the land for a money rent, or for a share of the crops. The witness Jordan in his examination in chief also testified that he went to Hastings for reapers in 1868 ; that he went for reapers in July, 3868; “ nobody sent me over; the defendant told me to go to Hastings, and if I could not get a reaper, to telegraph back to him; he did not tell me where to go.” The defendant upon cross-examination, had a right to inquire as to what Miller told the witness in this conversation about going to Hastings and purchasing a reaper, and if the question was not in form confined to this conversation, the testimony in reference to it, certainly was. The testimony received being proper, although the question was too general as to time, no injury having resulted to the plaintiffs, the erroneous form oí the question is not ground for a new trial. The order denying a new trial is affirmed.