Pharo v. Beadleston — 2 Misc. 424

Majority

p. 424

Pharo v. Beadleston.

(New York Common Pleas

General Term,

February, 1893.)

Headnote

In an action to recover for breach of contract to accept and pay for a quantity of thermometers manufactured by plaintiffs at defendant’s instance, the testimony of defendant’s agent tended to establish that at the time of entering into the contract, defendant’s agent stated to plaintiffs’ agent that defendant desired an advertising medium for the brewing business of novel and original design in that line of business; that plaintiffs’ agent represented that plaintiffs had not supplied any brewer with the thermometers; that relying upon the truth of this representation defendant’s agent was induced to make the contract on defendant’s behalf, and that such representation was false and untrue. Plaintiffs were permitted to introduce evidence from which it appeared that thermometers had for a considerable time before the making of the contract been extensively and notoriously used as an advertising medium in a variety of businesses other than that of a brewer. Held, that the evidence was admissible as affecting the credibility of defendant’s agent.

Appeal from a judgment of the General Term of the City-Court of New York which affirmed a judgment for plaintiffs

p. 425

entered upon a verdict in their favor, and which also affirmed an order denying defendant's motion for a new trial upon the minutes.

Edward S. Clinch,, for plaintiffs (respondents).

Moses Weiman, for defendant (appellant).

Ro appeal lies to this court from an order of the City Court of Rew York which refuses a new trial (Code Civ. Proc. § 3191; Wilmore v. Flack, 96 N. Y. 512 ; Smith v. Pryor, 16 Daly, 169 ); and without proper exception, founded upon a motion for dismissal of the complaint or that a verdict he directed for defendant, we are not permitted to search the evidence for its sufficiency in support of the verdict. Barrett v. Third Ave. R. Co., 45 N. Y. 628 ; Schwinger v. Raymond, 105 id. 648 .

On plaintiff’s direct examination he was asked “ For what purpose did you call upon defendants ■ after they had refused the thermometers ? ” This question was allowed against objection by defendant’s counsel, but in view of the fact that the witness had theretofore testified to the purport of his visit Without objection, the answer was mere reiteration. Ro ground of defendant’s objection -was given and so the exception is ineffectual. Cruikshank v. Gordon, 118 N. Y. 178 .

Alfred M. Beadleston, a witness for defendant, was asked on his direct-examination “ Did he (meaning plaintiffs’ agent) say anything as to whether any other brewer had such thermometers?” This was clearly leading and so properly excluded; but assuming the exclusion of the question to have been error, it was waived, and the exception thereto rendered ineffectual, by the witness’ testifying, without objection, to the next two following questions of defendant’s counsel: “G-o on and state anything else he said,” and “Was anything said as to other breweries having these thermometers, and if so, what ? ” Neil v. Thorn, 88 N. Y. 270 , 277; Crosby v. Day, 81 id. 242.

The remaining exceptions present but one question and

p. 426

may, therefore, be considered collectively. The defense was that at the time of entering into the contract for supply of the thermometers, Beadleston, representing the defendant corporation, stated to Bonnell, plaintiffs’ agent, that defendant desired an advertising medium for the brewing business of novel and original design in that line of business ; that Bonnell represented that plaintiffs had not theretofore supplied any brewer with the thermometers; that, relying upon the truth of this representation, he (Beadleston) was induced to-mate the contract on defendant’s behalf; and that it subsequently transpired that the representation was false and untrue. Beadleston’s testimony tended to establish this defense and to disprove it plaintiffs were permitted to introduce evidence from which it appeared that thermometers had for a considerable time before the making of the contract been extensively and notoriously used, in the city of Row York and elsewhere, as an advertising medium in a variety of businesses other than that of a brewer. To the introduction of this evidence defendant objected on the ground that the fact in issue was whether, or not, thermometers had been previously used as an advertising medium in the brewing business, not whether, or not, they had theretofore been used for such purpose in any business. The objection was overruled, and due exception taken.

"We are of the opinion that the evidence was properly admitted. The credibility of a witness is always in issue, and evidence of any fact which tends to impeach it, or to demonstrate the improbability of the truth of his assertions, is relevant to the issue and admissible. Beadleston, having concluded the contract for defendant, was chargeable with its-improvidence and directly interested in i(s avoidance. Ills credibility was for that reason a main element for the consideration of the jury in reaching a conclusion concerning liis alleged motive in making the contract and his communication of that motive to plaintiff’s agent. Canajoharie Natl. Bank v. Diefendorf, 123 N. Y. 191 . Evidence tending to show that thermometers had, for a long time before the ■ coiitract

p. 427

with defendant, been in general use as a medium of advertisement unquestionably affected the probability of the truth of Beadleston’s assertion that he was induced to make the contract because he wanted a medium “ of novel and original design ” in the brewing business, and the jury were at liberty to infer therefrom that the claimed importance of the exclusion of thermometers as a means of advertising from other breweries, was a mere subterfuge resorted to by defendant to rid itself of a contract improvidently made by its agent.

The judgment appealed from should be affirmed, with costs.

Daly, Oh. J., and Pryor, J., concur.

Judgment affirmed.

Cases cited

Wilmore v. Flack 96 N. Y. 512 N.Y. 1884-10-07 p. 425
Barrett v. Third Avenue Railroad 45 N. Y. 628 N.Y. 1871-06-06 p. 425
Cruikshank v. Gordon 118 N. Y. 178 N.Y. 1890-01-14 p. 425
Neil v. Thorn 88 N. Y. 270 N.Y. 1882-03-07 at 277 p. 425
Canajoharie National Bank v. Diefendorf 123 N. Y. 191 N.Y. 1890-10-07 p. 426