Beacon Engineering Co. v. Reece ( 1988 )

Beasley, Judge,

concurring specially.

I concur fully with Divisions 1 and 2 but cannot hold, as does Division 3, the challenged evidence relevant even under liberal rules of admissibility.

Decided February 10, 1988 Rehearing denied February 25, 1988 E. Wycliffe Orr, for appellant. Brenda T. Weaver, Troy R. Millikan, for appellee.

Appellant’s third enumeration is that the court erred in denying its motion in limine and in denying its motion for mistrial after certain evidence was admitted. Defendant sought to exclude evidence of Ms. Chivington’s personal relationship with Mr. Shields. The first motion was denied, and during her cross-examination as an adverse witness at the conclusion of plaintiff’s case, plaintiff was allowed to establish that she and Mr. Shields had been good friends for twenty years, that he currently lived at her house and they were close friends, and that he had lived at her house off and on for about the last year.

A motion for mistrial was made on the ground that this was irrelevant and prejudicial, and after denying it the court instructed the jury that “any relationship with Mr. Shields, whatever it may be, if any, has nothing to do with the case other than if it has any bearing on whether or not there was a rescission of the contract or anything that might have to do with either the contract or rescission. ...”

The contract for the sale of the airplane was not the contract on which the suit was based. The sole question was whether or not the noteholder was entitled to payment of the promissory note by Beacon Engineering Company, Inc., the maker. The personal relationship of the maker’s owner/secretary-treasurer to a third party, introduced to show the company’s real motivation for refusing to pay the note, was totally irrelevant. If the company’s true motivation was that it had no use for the airplane for which the unconditional note was consideration, because it had free use of another airplane, it would make the company no more obligated to pay the note than it otherwise already was.

However, even only assuming for the sake of argument that the evidence was inadmissible, appellant is not entitled to reversal and a new trial. Defendant’s sole defense was the immaterial contention that the note was based on an implied condition, which we have held in Division 1 is not a legal defense. Thus the evidence, which anticipatorily was elicited to counter the position that the airplane purchase depended on the president’s continuing in life and the business’ expanding, was harmless. Had it been excluded, the jury would have been compelled to reach the same result.