Moore v. Harneck ( 1918 )

Ostrander, C. J.

(after stating the faets). In the brief for appellant (no brief has been presented by appellee) there is a contention made which proceeds upon the theory that the court stopped defendant from giving testimony. Upon the merits it is contended that defendant was entitled to the possession of the telephone for six months after February 1, “to use up the rebate of 6 months allowed him by the plaintiff; that this was plaintiff’s usual method of adjusting rebates.” It is further contended that the allowance of the rebate had the effect to renew the contract for the period for which the rebate would.pay, and this independent, of plaintiff’s alleged express promise; that a new trial should have been granted, that whether—

“The conditions between plaintiff and defendant with reference to this telephone were such as to justify plaintiff in revoking defendant’s contract was a question of fact to be determined by the jury.”

Finally, it is said:

“There was enough testimony of defendant’s theory of the case in the evidence to make an issue upon plaintiff’s right to possession of the telephone sufficient that the jury should have been permitted to pass upon same; and we think it was error for the court to refuse it.”

Defendant’s counsel argues none of these, contenting himself with their statement. It is obvious that the court did not stop defendant from giving testimony, and there can be no question concerning the duty of counsel, upon the suggestion of the court, to state, to offer to prove, facts believed by him to be material to the issue. I assume that if he had been informed he would have offered to prove, either by statement or by interrogating the witness, the facts set up in the motion for a new trial. As it was, it does not appear there was any available testimony, known to him, which was not given.

There is no testimony tending to prove that plaintiff had any method of adjusting rebates. There was no rebate allowed to defendant. But if there was a parol promise to repay him money, or to pay him money, it cannot affect the right of plaintiff to possess himself of the telephone and its attachments. There is no testimony tending to prove that defendant ever agreed to accept the use of the telephone in place of some sum due him as a rebate, or claimed by him to be so due, or offered to him as such. On the contrary, if the testimony establishes any fact beyond doubt, it is the fact that defendant did not want the telephone at all unless the Heifner boys were on the line, and, accepting his testimony as true, he never had proper, and often had no, service after August, 1914. The theory of a new contract is not only not supported by testimony but it is disproved by defendant’s testimony. He testified that in January, 1915:

“I talked with Mr. Moore from Marlette over the telephone about the rebate, and also about placing the Heifner boys back on the line with me. He told me I could go to the bank and get the rebate.”

It was not error to deny the motion for a new trial, because if the omitted testimony had been received it could not have changed the result. Nor can this court say it was an abuse of discretion for the trial court to refuse the excuse offered for the failure to offer the testimony, at the trial.

Error is not made to appear, and the judgment is affirmed.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.