Cutler & Martin v. Skeels , 69 Vt. 154 ( 1896 )

Taft, J.

(1) The plaintiff Martin in response to a question, testified that he gave Howard P. Martin instructions in regard to the sale of the cattle. No objection was made to the question, but in answering it he stated that he authorized him to sell them for seven cents a pound, and added, “that they were worth that, as he understood cattle were bringing that in Barre.” It is insisted that the admission of this latter remark was error; It was not in response to the question.

That error cannot be predicated upon an improper answer to a proper question, see numerous Vermont cases. But the answer had some bearing upon the question of what instructions he gave Howard P. to sell them. It was more probable that he authorized him to sell them at that rate, if cattle were bringing the sum named, in the Barre market, than if the rate in that market had been less. But there was no controversy about the price agreed upon for the cattle, therefore the defendant was not harmed by the plaintiffs testimony that he understood cattle were bringing seven cents a pound in the Barre market, for that was the price at which the cattle were sold. For each of these reasons there was no error.

(2) Whether the plaintiff Martin had heard that Lombard had told somebody that he, Martin, had instructed him, Lombard, to keep quiet where the oxen had gone to, was immaterial. It was not pertinent to any issue in the case, and had no tendency to prove nor disprove any fact in controversy.

(3) The plaintiff Martin answered fully all questions asked in regard to what he had said to the justice about the latter looking at his, Martin’s cattle, at the time this suit was pending before the justice. There was no error in excluding the question of whether he knew better than to approach the justice, and try to influence him, for it does not appear what his answer would have been. He may have answered “No,” which would have been no benefit to the defendant. The defendant must show he has been harmed by a ruling, before a judgment should be. reversed. The exclusion of an unanswered question is not error, an offer must be made showing that the answer would disclose admissible evidence.

(4) The plaintiff testified in respect to Mr. Lombard, “I engaged him to carry the meat over;” this testimony was not objected to. The court ruled that it was proper to show what the plaintiff engaged Lombard to do, but no further testimony was given under the ruling, and therefore no injury was caused by it. The correctness of the ruling is not considered.

(5) The defendant had written the plaintiffs a letter and during the trial called upon the plaintiffs to produce it. The letter was concerning the cattle. It is not shown what the contents of the letter were. The court ruled that, at the time, the defendant was not entitled to its production. The contents of the letter not being shown we cannot say that it was error to exclude it. Were the contents material we do not say it was an erroneous ruling. We are not called upon to consider the question.

(6, 15%, 16) When the witness Rice was testifying, the court ruled, he could not give his opinion as to the age of the ox, — but notwithstanding the ruling, he stated that as near as he could judge the ox was ten years old.

The defendant was not harmed by the ruling for the question he asked was answered. A witness qualified to speak upon the subject may give his opinion as to the age of cattle. There was no error in admitting the testimony of Hall and Brock.

(7) There was no error in excluding the testimony that the witness Rice, after the justice trial, told the plaintiff Cutler, the oxen were old; the defendant was permitted to show the age of the oxen, and that the plaintiffs had changed the ground upon which they claimed to recover.

The plaintiffs had conceded that they had inquired of the witness how old the oxen were, and the witness had stated at the trial how old they were. It will be inferred that the witness told the plaintiffs the age as he understood it to have been. It does not appear that the offer of the testimony was to show he told them it was different from what he stated on the trial that it was. We infer it was the same. The testimony in substance was already in the case and further examination of the witness was unnecessary.

(8) As tending to show what the plaintiffs knew, about the age of the oxen, at the time of the justice trial, statements made to the plaintiffs prior to the trial were admitted ; but statements made to the plaintiffs after the justice suit, had no tendency to show that the plaintiffs knew the age of the oxen at the time of the trial, which was the purpose for which the testimony was offered.

(9, 10, 14) These points are waived.

(11, 15) A Mr. Rowell was called as a witness. He was a dealer in meats, and had seen the meats in question. He was asked to compare the meats with that which could be obtained from such cattle as were described by another witness. His comparisons were properly excluded. He could describethemeatin question and the jury could make the comparison, if it was material. For the same reason the question noted in the fifteenth exception was properly excluded.

(12) All that the defendant proposed to show by Mr. Bachelder under the twelfth exception, had already been conceded by the plaintiff Martin.

(13) There was no error in asking the defendant if in his letter he stated his claim of breach of contract, as he then, on trial, claimed it. No inquiry was made as to what the contents of the letter were.

(17) The counsel for plaintiffs in the opening and closing arguments, stated to the jury facts not supported by any evidence in the case.

The statement of counsel that he had known the plaintiffs for many years, and knew of their previous good character and reputation; and that their character and reputation was the best kind of evidence in their behalf, was not legitimate argument. It'was a statement of facts that he had no right to make, and as it was permitted by the court, we regard it as an implied ruling, that such argument was legitimate.

In this respect there was error, for which the judgment must be reversed.

(18) The exception to that portion of the charge detailed in the bill, was taken in these words, “to all which” the defendant excepted. To sustain such an exception the whole charge as detailed must have beenfaulty. No question is made ■but that the charge as to a warranty, was correct. The exception must be overruled even if a part of the charge was incorrect. Whether it was faulty in some of its aspects we have no occasion to consider. This point has been decided •so often, that it is needless to cite authorities in support of it.

Judgment reversed and cause remanded.