Brown v. Finney ( 1871 )

The opinion of the court was delivered,

by Williams, J.

All the assignments of error in this case relate to the rejection or admission of evidence. The controversy between the parties in the court below was whether the defendant had agreed to sell and deliver to the plaintiff at Cincinnati 100,000 bushels of coal, at 16 cents per bushel, payable on delivery. Both parties were examined as witnesses in relation to the alleged contract; and, after the defendant had given a full and detailed statement of all the facts and circumstances touching the transaction, he was asked by his counsel whether he and the .plaintiff at any time .made and concluded a contract, complete in all its parts, in reference to the delivery of the coal in question. The plaintiff’s counsel objected to the question because it sought to elicit from the defendant an expression of his opinion upop.the law and facts of the case. The court sustained the objection, and this constitutes the first assignment of error.

We are of the opinion that the objection was well taken, and that the question was properly overruled. Whether or not the plaintiff and defendant had made a contract, complete in all its parts, in reference to the sale and delivery of the coal, was a question for the determination of the jury, under the instruction of the court, upon all the evidence as to what was said and done by them at the time of the alleged transaction. The defendant had the unquestioned right, and he was permitted without objection, to state all that took place between himself and the plaintiff in relation to the sale of the coal; but it was not competent for him to state whether the facts to which he had testified did, or did not, constitute a contract complete in all its parts; and this in effect was what he was asked to do. It is doubtless true that whether the defendant did, or did not, make a contract with the plaintiff complete in all its parts, was a question of fact; but the fact, whether he did, or did not, make such a contract, depended upon what was said and done by the parties at the time of the transaction. It is obvious, then, that the statement of anything beyond what actually took place between them, if the defendant had been permitted to make it, must have been mere matter of inference or opinion.

Nor was there any error in the admission of the testimony of Wilkins in rebuttal of that given by the defendant, as complained of in the second assignment. It was not cumulative, but contradictory of the defendant’s testimony as to material matters touching the alleged contract. The fact that the witness had been examined in chief, and had stated all he recollected of the transaction, constituted no valid objection to the admission of his rebutting testimony, because if the facts testified to by the defendant did not take place, it could not have been given in chief. The defendant had stated that one of the provisions of the proposed contract was that security should be given for the return of the barges in which the coal was to be shipped; and it was certainly competent for the plaintiff to’ show that nothing was said on the subject by either party at the time of the transaction. Even if the evidence was cumulative and admissible in chief, as contended, the fact that it was received in rebuttal is not assignable for error: Finlay v. Stewart, 6 P. F. Smith 183.

Judgment affirmed.

Agnew, J., dissented.