Pass Canning Co. v. Torsch ( 1905 )

Cal’i-ioon, J.,

delivered the opinion of the court.

Torsch, the appellee, sued the canning company, the apjtellant, for the value of oyster shells which he proved that appellant had forbidden him to remove. To show his right to remove them, he offered in evidence a clause in a long, written contract between him and appellant, which clause gave him the right to remove them between certain named dates. This was objected to on the sole ground', that the contract was not' proved. Appellee then proved the contract, and again offered to read the clause. The only objection then made was “for the reason the same has no. bearing on this cause, and is, therefore, immaterial and incompetent.” This was overruled and exception taken. The whole of the written contract is in the record before ns, and it is plain that the clause was material; and if objection had been made that the whole of the contract was not offered, it is equally clear that the rest of the contract was in no degree material, and all would, or could, have been offered. But there was no complaint in the court below on this ground.

In the progress of the trial a witness for appellant, having testified that he could not approximate the number of barrels of shells on hand at a certain date, was asked, on cross-examination by appellee, whether he had not signed a certain other contract between the oyster commission and appellee on April 30, 1903, for thirty-five thousand barrels of shells. To this objection was made, without giving any reason therefor; the court overruled the objection, and exception was taken. The reason now given, for the first time, in this court is that it was allowing parol evidence of a written contract. Now, the only use of this other contract in the present case was its date and the signature to it by the witness to verify the date. If there could be a sound objection to this, all difficulty vanishes when it is seen that the appellant produced, on reexamination of that very witness, the identical contract, showing the signature of the witness and the date.

The only complaint of the solitary instruction given for the appellee is that there is no evidence of conversion of the shells by appellant to its own use. This was an action on contract for the value of the shells, not an action in trover, and it is abundantly shown that appellee had the right to them,- and that appellant refused to permit him to take them under the contract between them; and the instruction is based on this only, and not on conversion.

Affirmed.