Abenheim v. Samuel — 16 N.Y. St. Rep. 907

Majority

p. 907

Max Abenheim et al., Resp’ts, v. Edward Samuel, App'lt.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

1. Contract—Action for breach of.

This action was brought to recover a balance due upon a contract for the delivery of iron of a certain quality. The defense set up was that the iron was not of the quality contracted for. It appeared that there was a

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brand of iron well known in the market, and that the contract called for this, the only variation being that the word foundry was added to the usual designation of the brand. It also appeared that this brand of iron was principally used for foundry purposes. Held, that it was this quality of iron that was contracted for

3. Evidence—Order of proof—Discretionary with court.

Held, that the order of proof rested in the discretion of the trial judge, and that it was not error for him to admit evidence on the part of the plaintiff as to the quality of the iron after the plaintiff had rested.

3. Same—General objection raises question of relevancy.

Held, that a general objection to the admission of evidence raised only the question of relevancy.

4. Same—Relevancy of.

Held, that evidence of the characteristics of the iron of the brand in question was admissible as pertinent to the question whether the iron delivered was of the quality called for by the contract.

5. Charge to jury—Rights of parties regarding.

Held, that the court having charged the jury substantially as requested, a party was not entitled to have the charge made in the language of the request.

Appeal from judgment entered in favor of plaintiff upon the verdict of a jury, and from an order denying a motion for a new trial.

Leopold Wallach, for app’lt; Richard S. Newcombe, for resp’ts.

This action was brought to recover a balance due upon contract for the delivery of seven hundred tons of iron, Coltness, No. 1, foundry.

The defense set up was that the iron was not of the quality contracted for, and the learned justice who presided at the trial submitted the question to the jury whether the iron delivered was Coltness brand, No. 1. The jury were specially instructed that the iron would not answer to the quality called for by the contract, merely because it had a brand upon it of No. 1, Coltness, but it must have been such iron, according to the true standard grade that the Coltness foundry had established. If it was, if this iron was Coltness, No. 1, foundry, then the jury were instructed to find for the plaintiff. If it was not, then they were directed to find for defendant for the amount paid on the iron and the interest thereon.

The defendant excepted to the judge s charge, commencing with the paragraph mentioned down to the end and to each and every part thereof. This exception is not well taken, as it is too general, and there were many portions of the charge excepted to, if not all of it, entirely unobjectionable. The defendant also made certain requests, which were refused, otherwise than already charged. The requests had all been, except one, substantially charged, although, perhaps, in different language from that in

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which the requests were couched, but to the same purport, and this is all to which the defendant is entitled.

The court construed the contract, as it was its duty to do. There was no ambiguity as to its terms. The contract plainly called for Coltness, No. 1, foundry, and if this iron company had established a grade of iron known by this name, or which would come under this designation, that quality of iron and none other was called for. The evidence showed that there was a quality of iron well known in the market as No. 1 Coltness pig iron, suitable for foundry purposes. The contract called for pig iron, Coltness, No. 1, foundry. The only variation from the description of the quality of Coltness iron well known in the market being the word foundry, and it appears that the Coltness pig iron, No. 1, is principally used for foundry purposes.

It is clear, therefore, that it was this quality of iron well-known in the market, which was contracted for, and whether the iron delivered came up to this standard was plainly submitted to the jury.

The claim that the learned judge erred in admitting evidence upon the part of the plaintiff as to quality after the defendant had rested, cannot be supported. The order of proof was in the discretion of the judge, and, although, perhaps, he might have adhered to a more rigid rule, it was not legal error not to do so.

The objection founded upon the rulings of the court as to the number of witnesses as to quality cannot be considered, because it does not appear in the case and we cannot infer that any error was committed therein.

There seems, however, to have been some errors committed to the prejudice of the defendants in the exclusion of evidence. Mr. Theodore H. Morris was examined as a witness by a commission and after showing that he had been in the iron business since 1861, that he could tell the quality or grade of iron by inspection and that he had examined the iron, he was asked: Q. What grade of iron was it?

This question was objected to without stating any grounds and excluded and an exception duly taken.

' This seems to have been error. If the objection was want of qualification or any dispute as to the identity of the iron inspected, the objection should have so stated because these objections can frequently during a trial be obviated. A general objection raises only the question of relevancy, and it was certainly relevant to show what grade the iron was.

Another ruling seems to be equally fatal, A witness having been examined and cross-examined as to the qual

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ity of the iron, upon re-direct examination was asked: Q. What do you expect to find in Coltness iron particularly?

This question was ruled out under objection. This question was intended to call out from the witness a description of the particular characteristics of Coltness iron, and if these were not found in the iron in question, it was some proof that the iron was not of that quality.

By these rulings the defendant was deprived of evidence to which he was entitled, and of the benefit of which he should not have been deprived.

The judgment must be reversed and new trial ordered, with costs to the appellant to abide event.

Bartlett and Daniels, JJ., concur.