Allen v. Rogers

MACOMBEE, J.

This action was brought upon an alleged contract wherein the plaintiff claimed the existence of an agreement with the defendant to sell property owned by the defendant, in the city of Dunkirk, at the price then and there stated by the parties to be $16,000. It is alleged by the plaintiff that after the sale of the property at that price he was to have 3 per cent, commission for his services. The defendant denies the existence of •any agreement respecting the sale of this property, or that the plaintiff was ever in his employ for that purpose. The plaintiff further claims, in addition to the making of this contract, that the defendant made him a payment, partly in cash, and the answer contains a general denial of all the allegations in the complaint. This appeal is made upon exceptions • taken at the trial to certain •evidence admitted by the trial court. A verdict was brought in for the plaintiff for the relief asked for in the complaint. As no ■exceptions were taken by the defendant to the charge of the court, and no request to charge was made by the defendant, nor was any motion made for a nonsuit, or a dismissal of the case, it follows that it is for this court to pass judgment solely upon the question whether any errors were committed by the trial court in the admission of evidence.

The case shows several rulings against the defendant, but to which no exceptions were taken, and these, of course, cannot avail the defendant' upon appeal for a hew trial. The first exception taken by the defendant occurs in folio 78, where the defendant endeavored to show that he went to a picnic on what he was informed was an invitation from Dotterweich, (the subsequent purchaser of the property in question,) and that Dotterweich was aiding Allen "in his efforts to swindle the defendant. • This was properly excluded by the learned trial justice. The conversation sought to be proved was not with Dotterweich, but with a party whom he had sent after the defendant. Evidence tending to prove that the defendant had negotiated with Dotterweich, himself, in regard to the sale of the farm, would have been proper and admissible, but "inferences, from conversations with a third party, as to underhanded intentions on the part of Dotterweich, were clearly inadmis•sible.

Again, an exception was given to the defendant upon the exclusion of the conversation in regard to the borrowing of two dollars "by defendant. This conversation was in regard to a loan of two dollars, which the defendant obtained, not from the plaintiff, Allen, but from Dotterweich, and had no connection whatever with the plaintiff, or the money claimed to have been borrowed of plaintiff by defendant, and hence was irrevelant and inadmissible.

To the exception taken by the defendant in regard to the exclusion of evidence in answer to the question, “Did you, at any of the time, know that Mr. Allen was working for you?” there was no error made. This question was properly excluded as immaterial, and as calling for a conclusion from the witness. It" was also "indefinite; and inasmuch as¡ by the next question, the defendant was permitted to show that at the time the contract was made he did not know that Allen claimed to be working for him, leaving the question of the admissibility of it out of the question, there was no harm done by its rejection.

The only other exception taken by the defendant, which calls for a decision by us, relates to the exclusion by the court of the evidence that persons other than Mr. Smith made claims against the defendant for selling land. This was rejected as immaterial to the issue. In determining the question at issue between the parties hereto it would be clearly inadmissible, on the ground of in competency, to receive testimony to prove the nonacceptance of the contract by the parties, by showing that other persons had undertaken the same work as the plaintiff.

There are other exceptions, but the above are the only ones of sufficient importance for us to pass upon, and having found that no error was committed by the justice in the admission of such evidence, under the circumstances, the claim made by the appellant, that the evidence shows a strong preponderance in favor of the defendant cannot be sustained. It is unnecessary to go further into the questions raised on the trial, and for. this reason it follows that the judgment of the county court should be affirmed, with costs to the respondent. All concur.