Huganir v. Cotter

Cassodat, O. J. The principal issue tried was whether the defendant induced the plaintiff to make the written, contract by falsely representing that there were 1,500,000 feet of timber on the seven forties, and that it would run on an average nine logs to the thousand; or whether his representations were to the effect that he had never been on the land, and had no personal knowledge of the quantity or size of the timber thereon, but from his information from others he thought there were from 1,000,000 to 1,500,000 feet thereon. The testimony of the plaintiff and defendant on such issue was in direct conflict. To support such issue the plaintiff called and examined one "Waush, who testified to having had a conversation with the defendant about two weeks after the contract was made, and was then asked: “During that conversation, did he [the defendant] make any representations to you with reference to the amount of timber on the lands in question in this action ? ” To that question the defendant objected on the ground that it was incompetent and immaterial. The plaintiff’s counsel then stated: “ We offer this for the purpose of showing that the plaintiff was not mistaken when he testified as to what he had represented to him prior thereto, and for the further purpose of identifying the agency that committed the fraud.” The court then. [4] overruled the objection, and the defendant excepted. The witness answered: “ In the neighborhood of fourteen hundred thousand,— a little over,— maybe more.” So, the plaintiff’s witness Pose was allowed to testify, against objection and exception, that he had a conversation with the defendant some four months prior to the making of the contract in question, a-nd that in that conversation the defendant told him and one Hammond “ that there was about fifteen hundred thousand there.” Of course, there is a class of cases in which evidence has been received of facts which happened before or after the principal transaction and which had no direct or apparent connection with it, but they are cases in which the knowledge or intent of the party was a material fact, on which the evidence, apparently collateral and foreign to the main subject, had a direct bearing and was therefore admissible. 1 G-reenl. Ev. § 53. But the evidence thus sought to be elicited, and in fact elicited, does not come within such exception to the general rule. As indicated by the statement of counsel quoted, it was not offered as tending to prove such knowledge or intent, nor as tending to prove an admission of any fact sought to be established by the plaintiff. On the contrary, it comes squarely within the general and elementary rule, as stated by Greenleaf, which “ excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; and the reason is, that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them; and, moreover, the adverse party, having had no notice of such a course .of evidence, is not prepared to rebut it.” 1 Greenl. Ev. § 52; Blakeslee v. Rossman, 44 Wis. 554; Felt v. Amidon, 43 Wis. 467; Grisim v. Milwaukee City R. Co. 84 Wis. 22. See, also, numerous cases cited by counsel for the appellant. Some of the evidence admitted, to which [5] exception is taken, appears to have been made when both parties were present, and of such a nature, perhaps,' as to be admissible as tending to prove an admission. We merely mention it, so as not to be misunderstood. We perceive no substantial error in the charge. The only errors assigned are as to the admission of testimony and in charging the jury, and yet the printed case consists of 178 pages, besides the index. That did not confine the printed case to a complete abstract or abridgment of so much of the record as was necessary to a full understanding of the questions presented for decision, as required by Eule YIII. To comply with that rule it was unnecessary for the printed case to contain more than sixty pages, and in taxing costs in this court the defendant will only be allowed therefor that number of pages. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.