Association of Army & Navy Stores, Inc. v. Schaengold

This cause is prosecuted to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the defendant, Ben Schaengold, doing business as Dunlap Clothes Shop, in conformity to a general verdict.

Only one point of error is stressed by the plaintiff in error, and it refers to the denial of the right of plaintiff in error to ask certain questions by which it sought to lay the foundation for an impeachment of the defendant in error. The record shows the following to have occurred: Ben Schaengold, having been theretofore duly sworn, was recalled for further cross-examination, and testified as follows:

Cross-Examination by Mr. Taft: "Q. Mr. Schaengold, I will ask you whether at any time you made any statement to Mr. Leibold between June, 1925, and January, 1926, that you had made any sort of investigation about the Army and Navy Stores with Wallack Brothers or any other person?

"Mr. Marx. I object to that.

"The Court. The objection is sustained.

"Q. I will ask you whether at anytime during the six months period between June, 1925, and January, 1926, you told Mr. Leibold of any efforts on your part to find out about the Army and Navy Stores contract then in operation with Wallack Brothers?" (Question objected to by counsel for the defendant; the objection was sustained, to which counsel for plaintiff excepted.)

Thereupon the witness left the stand.

Thereupon plaintiff rested.

Thereupon defendant rested.

Thereupon, at the conclusion of all the evidence, counsel for defendant moved the court to instruct the jury to return a verdict in favor of the defendant, which motion the court overruled, to which counsel for defendant then and there duly excepted.

The plaintiff in error sued the defendant in error for breach of a contract. The plaintiff in error by solicitation and otherwise has secured a large number of life members to whom it furnishes pamphlets containing the names and addresses of member merchants who allow a discount upon the amount of the purchases made from such merchant members by life members of the association. It solicited the merchant membership of the defendant in error, who was induced to enter into a contract with the plaintiff in error association by reason of certain representations as to the business done with it by a competitor merchant in the same city. The defendant in error then repudiated the contract.

That representations were so made by plaintiff in error, that they were false, and that defendant in error relied upon them is amply sustained by the evidence.

It was contended by plaintiff in error that the defendant in error did not rely upon such representations, but made an independent investigation of the business done with the association by a former merchant member in another city, and that the defendant in error had stated that it was the result of this investigation that had induced him to enter into the contract in question.

Statements against the interest of defendant in error could have been proved against him directly without laying any foundation for impeachment. DeGroodt, Exrx., v. Skrbina, Admr.,111 Ohio St. 108, 111, 144 N.E. 601, 38 A.L.R., 591; 17 Ohio Jurisprudence, 303, Section 235; 28 Ruling Case Law, 636, 637, Section 221.

While some attempt was made in this direction, the effort was abandoned, upon the erroneous adverse ruling of the court, and no exception was taken.

The plaintiff in error then attempted to lay the foundation for an impeachment, but in so doing failed to comply with the well-established rules concerning special impeachment.

"Evidence relating to special impeachment tending to contradict some statement made by a witness in a cause on trial is not competent until the foundation is first laid by inquiring of the witness sought to be impeached as to whether or not, at some time and at some place, and to some person or persons, as definitely fixed or named as may be, he did not make some particular contradictory statement, advising the witness, at least in substance, what such statement was." Radke v. State of Ohio,107 Ohio St. 399, 140 N.E. 586, syllabus, paragraph 3.

To the same effect is the text in Section 221, 28 Ruling Case Law, page 636.

The plaintiff in error failed to ask concerning a definite statement, failed to mention the place, and left a wide scope as to the time when the statement was supposed to have been made. No error, prejudicial to plaintiff in error, therefore, intervened, and the judgment must be affirmed.

Judgment affirmed.

HAMILTON and CUSHING, JJ., concur.