Whitney v. Durkin

By the Court, Niles, J:

The new trial was granted solely upon the ground of “ errors of law committed by the Court during the progress of the trial, and excepted to by the defendants.” The principle issue at the trial was whether, at the time of the sale and delivery of the goods, the credit was given to the defend-» ants or to Carter, the drawer of the order. The only exception taken by the. defendants was to a portion of the testimony of Geo. O. Whitney, one of the plaintiffs. The witness had stated that after the sale and delivery of the goods he visited Carter several times to procure payment by him of the amount of the claim, and was unsuccessful. He was then permitted to testify, against the objection of defendants, in substance, that on the occasion of his last visit he informed Carter that he did not hold him responsible for the price of the goods; that he had nothing to hold him at ail in any way, especially in the manner the goods were sold to the defendant at the time of the sale; nothing but a simple-order on him, etc.

This testimony was clearly inadmissible. The declarations were not parts of the res gestee. The rights and liabilities of the several parties were fixed at the time of the sale and delivery of the goods. It is difficult to see how a declaration of the plaintiff, made several weeks later, and jn the absence of the defendants, could form a part of, or in any degree illustrate or explain the past and completed transaction.

We cannot say that the testimony was immaterial. Its direct tendency would be to impress the -minds of the jury with the belief that the plaintiffs had not intended to give the credit to Carter, but to the defendants. That was an important issue in the case; and upon that issue the testimony was inadmissible. We think the new trial was properly granted.

Order affirmed.. Remittitur forthwith*.