White v. Williams ( 1899 )

JUDGE BURNAM

delivered the opinion of the court.

This suit was instituted by appellant to recover of appellee $1,000 paid as a service fee of his stallion, Allerton, under an alleged contract insuring a foal, the mare having failed to produce a foal as the result of such service.

Defendant denied that he had warranted or insured a foal, and the trial resulted in a verdict and a judgment for defendant, which we arp asked, on this appeal, to reverse on account of errors in admitting and rejecting testimony.

The testimony on behalf of plaintiff is to the effect that defendant in the spring of 1892 agreed, for a fee of $1,000, to insure him a colt by his horse, Allerton, and that at the time he entered his mare by her name and pedigree in his book; that subsequently, in July, plaintiff sent his mare to defendant’s place in Iowa to be bred; and that shortly afterwards he sent this check in payment of the service fee: “Paris, Ky., August 1, 1892. Northern Bank of Kentucky: Pay to C. W. Williams of order one thousand dollars, for service of Allerton to Amy King, 'foal insured.’ 0-. O. White,” — which defendant indorsed and collected.

Upon the trial, plaintiff was asked: “How did you happen to write the words in the check, 'For service of Allerton to Amy King, “foal insured” ’?”. which was objected to by defendant. The objection was sustained, and this is the first error complained of. Upon the examination of defendant, he was asked in chief, “Why did you draw the money with that memorandum on there?” to which plaintiff excepted; but the objection was overruled, and defendant was allowed to state “that he did not consider them any part of the contract with him, or in any wise binding upon him.”

We are of the opinion that the court properly refused to allow plaintiff to give any explanation of what was in his mind, or what he intended b*y writing the words “foal insured” on the face of the check. The motives which induced him to make tliig declaration of the check were wholly immaterial and incompetent. And, for the same reason, it was not competent for defendant to testify as to the motives which induced him to disregard the memorandum. He testifies that he observed ' the words on the check. There is nothing ambiguous about them, and his opinion as to their effect is a mere conclusion of his, and not a statement of fact which was competent evidence against plaintiff. The check went to the jury as evidence, and the purpose and effect of these words was a question for them, under proper instructions' from the court, to determine.

The next error complained of is that the court permitted the defendant to read to the jury advertisements of the terms on which the horse, Allerton, stood for the season of 1892, as they appeared in the horse papers.

The plaintiff bases his right to recover the service fee paid defendant upon a special agreement that his horse would get plaintiff’s mare with foal. The burden of proving this agreement is on plaintiff, and the fact that other conditions of service of the horse, Allerton, were published in various horse papers, furnishes no competent testimony as to whether this agreement was made or not. There is no claim that plaintiff ever saw these advertisements, or consented to breed his mare on the conditions named therein. These advertised terms were not binding on the defendant himself, as he could have varied them in each individual case, if he had so desired; and we can readily understand how the admission of such testimony may have exercised a controlling influence on the jury. It certainly tended to confuse the issue, and divert their attention from competent evidence bearing thereon.

Tlie verdict and judgment in this case appear to be so palpably against the weight of the evidence that we are inclined to think that it was, in the main, due to the admission of this testimony. The judgment is reversed, and the cause remanded for a new trial consistent with this opinion.