Goddard v. Crefield Mills

LACOMBE, Circuit Judge (after stating the facts). 1. It is assigned as error that the court refused to allow ihe witness Pope to give his opinion, as an expert, as to “what would be a reasonable time for the performance of the contract.” The complaint averred tlmt the respective parts of the contract were to be performed at and within reasonable times, respectively, — an averment denied by the answer. It was part of the plaintiff’s case, therefore, to prove that the contract did contain such a clause, and also what a reasonable time really was. This last could be shown either by the opinion of experts, or by show [820] ing acts of the parties tending to show what period of time they contemplated. Plaintiff pursued the latter course, and' rested. , Thereupon defendants proceeded with their case. In the course of it, their principal witness, one of the defendants, who was undoubtedly an expert, was cross-examined on that branch of the case; the specific question being put to him, “What do you call a reasonable time?” and the same query propounded in different forms. The defendants having rested, plaintiff proceeded in rebuttal, but called no expert as to what was a reasonable time. Thereupon, the case being finally closed by both sides, defendants recalled the witness Pope, whom they had once examined, and offered to show by him “what would be a reasonable time.” The record contains no excuse for this belated tender of evidence, which defendants had had abundant opportunity to introduce in its proper place, and the court quite rightly refused to open the case to let it in. 2. It is assigned as error that a question asked upon the cross-examination of the witness McColl was excluded. Under the pleadings, plaintiff had only to prove the contract as it understood it, and to show the breach of it by defendants. It would have been improper for plaintiff, at that stage of the case, to have gone into any matter of defense. The alleged furnishing of like goods to other dealers was a matter of defense, and properly to be opened by defendants when their casé was put in. McColl was the first and only witness called by plaintiff to establish the affirmative, of the issues tendered by the complaint. He was cross-examined at length upon matters germane to his direct evidence. Defendants’ counsel then put this question: “Q. I hand you two pieces of goods, and ask yoti to state whether they are made of cotton, each of them?” This was objected to as irrelevant and immaterial, whereupon defendants’ counsel stated that it was his object to show’, in aid of the defense, that “at the very time plaintiff took our order they were making the same kind of goods for a competitor.” The court thereupon ruled: “All that is matter of your defense. ■ You may recall him for further examination when you enter upon your defense.” At the special request of defendants’ counsel, the court allowed the witness, before leaving the stand, to identify some samples of goods as made by the Crefield Mills; and after a few more questions, the witness having plaintiff’s order book in his hand, defendants’ counsel endeavored to introduce proof of their defense by this question: “Q. Is there any order in that book for surface cloths received from anybody else than Goddard & Sons during 1892 and 1893?” This question was object (id to as incompetent and irrelevant. •Certainly, under the former ruling it was irrelevant to the issues then being inquired into. The record states that the question was excluded; but does not say on what ground. It was manifestly properly excluded on the ground already stated by the court. 8. It is assigned as error that the court struck out part of the testimony ‘of defendant Frederick N. Goddard. This witness testified as to a conversation he had in December, 1893, with one A. H. Broadway, as follows: “Mr.' Broadway asked us to complete it [the contract], and I said that we could not complete it, because the company had sold goods that were [821] like ours, and in contravention of our contract with them, to other people; and Mr. Broadway said that, while thai was so, that they had done it after the term of our eontraet had expired, and, as he stated it, after June 30th.” Hie court struck out the italicized part of this excerpt. It was plainly hearsay, and, since Broadway was merely the plaintiff’,s salesman, his alleged “admissions” as 'to matters not within the scope; of his employment, and not made in regard to a transaction then depending et dum f ervet opus, were inadmissible against the plaintiff. The two remaining objections to the exclusion and admission of evidence are too frivolous to merit discussion. And inasmuch as the court charged the jury fully on the whole case, and strongly in defendants’ favor, it was not error to refuse the particular request that the “acceptance of dyeing orders in October and December, 1893, was evidence hearing on the question whether plaintiff considered the contract alive.” Railroad Co. v. Whitton’s Adm'r, 13 Wall. 270. The only remaining assignment of error is the failure of the court to dismiss the complaint on the ground that the contract on which the action is based was made in violation of law, in view of the provisions of section 15 of chapter 687 of the Laws of 1892 of the State of New York. This point was carefully considered by the circuit judge in (halving 1he motion for a new trial. In his opinion, reported in 69 Fed. 141, we fully concur. The judgment of the circuit court is affirmed.