Harris v. Holmes , 30 Vt. 352 ( 1858 )

The opinion of the court was delivered by

Redfield, Ch. J.

The only questions reserved in the present case are, in regard to the admissibility of certain evidence by the auditor. In regard to such questions, we have to allow a wide range in the admissibility of evidence, in the trial of cases where the issue is not defined, and where, of course, at the time, it is often impossible to anticipate what questions may ax’ise in the course of the trial.

—The rule in such cases is, that the testimony should be received, if it is competent evidence in any view of the case wtiiol^rnny hp_ thereafter taken— And a new trial is not to be granted on account of the admission of evidence which might have become important in any supposable state of the other evidence, or upon any question which might probably thei-eafter arise, unless it appear that it was improperly applied in the decision of the case, so that as a general rule it is not safe to raise questions upon the admissibility of evi] dence. But the useful and practical method, and the one now more commonly practised upon, is to reserve the questions upon the application of the evidence to the determination of the case. It is still competent to object to evidence which is in no event competent, and it must be rejected if so remote from the issue, that this is apparent, and especially where the proof offered is not of the character of legal evidence.

The evidence objected to in the present case does not appear to us to have been so obviously irrelevant, that it should have have been rejected, and there is no complaint of the use made of it in the decision of the case, or that in consequence-of this evidence the auditor decided the case upon improper grounds.

The auditor details all the evidence, and decides the case upon the ground that it was not sufficient to charge the defendant. And it seems to us that it had no tendency to charge him. For although the plaintiff stated in his testimony that he distinctly understood he was to charge the advertising to the firm, it is obvious that from what he says passed between him and Hall, he could not have been justified in any such understanding, unless upon the ground that the firm derived the benefit of the advertisement, for Hall expressly declined having the advertisement changed to the partnership, saying he would see about it some other time. And the auditor says this was all the proof on the part of the plaintiff. Here was surely no attempt by Hall to make a contract on behalf of the partnership.

But it might undoubtedly be claimed, that from the nature of the partnership and its business, the advertising would enure to their benefit, and on that ground all the partners would be liable. It was then competent for Holmes to show the extent of the partnership, and that it did not include the entire sale of the article advertised, but that Hall still continued to sell the article on his own account, and that the advertisement would enure to his private benefit, the same as before. And the testimony that the firm were not to advertise, and did not advertise, went effectually to rebut any inference of the liability of the firm on the ground that the service was performed for their benefit, and that the plaintiff was justified in charging the advertising to the firm on that ground. This disposes of all the evidence objected to,

Judgment affirmed.