Manning v. Schmitt — 4 A.D. 131

Majority

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James S. Manning, Appellant, v. Robert Schmitt, Respondent.

Headnote

Evidence — a defendant may not testify as to conversations with one of two pa/rtnerrs {plaintiffs) who has since died.

In an action brought to recover a part of the purchase price of a gas engine, in which the defendant set up, among other things, a breach of warranty, it appeared that the plaintiffs, who were father and son, were co-partners, and that the sale was made by the father, who died prior to the trial of the action. The warranty was alleged to have been by parol and depended solely upon the evidence of the defendant, who testified in regard to interviews between himself and the father. . ■

Held, that the evidence was inadmissible under section 839 of the Code of Civil Procedure.

Appeal by the plaintiff, James S. Manning, for himself and as surviving partner of the firm of A. C. Manning & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office-of the clerk of the county of New York on the 8th day of December, 1892, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered' in said clerk’s office on the 2d day of December, 1892, denying the plaintiff’s motion for a new trial made upon the minutes.

The action was brought to recover the balance of the purchase price of a gas engine sold and delivered by plaintiffs to defendant. The defense was breach of warranty, and a counterclaim for a part of the purchase money paid and for damages.

The defendant made and delivered to plaintiffs an order for the engine, which plaintiffs received, and under which they delivered the engine. The purchase was made April 29, 1889. The total purchase price was $377, of which $190 was paid at the time of the delivery of the engine.

The warranty was alleged to have been by parol, and was proved

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by the defendant’s evidence alone. There was no other witness sworn on the subject.. The original plaintiffs were co-partners, and were father and son.. The son was not present at the sale, and had nothing to do with it. The father and plaintiffs’ bookkeeper represented the firm in the transaction, and it was with them the interview took place which constituted the warranty upon which the defense was based. The elder member of the plaintiff’s firm died April 20,1891,, after the action was begun, but before the trial, which took place in December, 1892. • -

The evidence of the defendant, with reference to this interview and warranty, was objected to when it was given, on the ground that the partner with whom it was had was deceased. Another interview between defendant and this same partner was allowed tó be testified to by the defendant as having taken place after the disagreement as to the engine had arisen. This was also objected to when it was given. Then a motion was made later to strike out all this evidence, which motion was denied. Exceptions were taken by plaintiffs’ counsel to these several rulings. The case was submitted! to the jury, and they were instructed that, upon this evidence, they might find a warranty as alleged; and, if there was a breach, they might' render a- verdict in favor of defendant upon his counterclaim,1 -which they did. -

John J. Connelly, for the appellant.

Arthur S. Tompkins, for the respondent.

It was clearly erroneous to permit defendant to testify to personal •interviews with the member of plaintiffs’ firm, who. was, at the time óf the trial, deceased. Section 829 -of the Code.of Civil Procedure ¡prohibits, the giving of such evidence. It cannot be claimed that the objection was not brought to the attention of the court with sufficient ■clearness.' When the subject first arose, the court,said : “ Strike out ■the-testimony that he had this, conversation with a-man who is alleged to be-dead.”' The next time the question was presented, the. objection-was put upon the express ground that it already appeared that the conversation was with the partner who had since died, and. the court said-.: “ If you want to put that in, I shall allow you to

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do it; * * * but, at the same time, I say, as I have said before, it is extremely doubtful, and I do not see that it is necessary to your case. If you think it is, and want to take the risk, I will allow it.” And, again, when the later interview was offered to be proven, and objection was made that it was within the provisions of the statute, the court said : “ If you want to take the risk, I will let it go in.” The objections were not very definite. They might have been more specific, but it is apparent that the court was fully apprised and was well aware of the grounds of the objections. They were grounds which in no way could have been obviated.

The defendant was incompetent to give evidence of either of these interviews, and it was error to permit him to give it. For this error, the judgment should be reversed anda new trial ordered, with ■costs to appellant to abide event.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., ■concurred.

Judgment reversed and new trial ordered, costs to appellant to ■abide event.