Pharo v. Beadleston & Woerz — 50 N.Y. St. Rep. 609

Majority

p. 609

Allen R. Pharo et al., Resp'ts, v. Beadleston & Woerz, App'lt.

(New York Common Pleas,

General Term,

Filed February 6, 1893.)

Headnote

Contract—Breach—Eviden ce.

In an action to recover damages for defendant’s breach of contract to accept and pay for a quantity of thermometers manufactured by plaintiffs at defendant’s instance for use as an advertising medium in the latter’s brewing business, the defense was that the contract was induced by material misrepresentations by plaintiffs’ agent; defendant’s agent testified he stated to plaintiffs’ agent that they desired a novel and original design for an advertising medium in their business, and that he represented that plaintiff’s had not,theretofore, supplied any brewer with thermometers; that relying on the truth of this he made the contract, and that it subsequently transpired that the representation was false. To disprove such testimony plaintiffs were allowed to show, under objection, that thermometers had been extensively used for advertising purposes in in other lines of business than that of a brewer. Held, that the evidence was properly admitted to affect the credibility of the defendant’s agent, who concluded the contract, and, therefore, was directly interested in its avoidance.

Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiffs entered upon a verdict in their favor, and which also affirmed an order-denying defendant’s motion for a new trial upon the minutes.

Action to recover damages for defendant’s breach of contract to accept and pay for a quantity of thermometers manufactured by plaintiffs, at defendant’s instance, for use as an advertising medium in the latter’s brewing business. Defendant claimed, by way of defense, that it was induced to make the contract by alleged material misrepresentations of plaintiffs’ agent.

Edward S. Clinch, for resp’ts;

Guggenheimer & Untermyer (ifoses Weiman, of counsel), for app’lt.

Ho appeal lies to this court from an order of the city court of Hew York which refuses a new trial, Code Civ. Pro., § 3191; Wilmore v. Flack, 96 N. Y., 512 ; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 , and without proper exception founded upon a motion for dismissal of the complaint, or that a verdict be directed for defendant, we are not permitted to search the evidence for its sufficiency in support of the verdict. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628 ; Schwinger v. Raymond, 105 id., 648 ; 7 St. Rep., 544 .

On plaintiff’s direct examination he was asked, “ Por 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. Ho ground of defendant’s objection was given, and so the exception is ineffectual. Cruikshank v. Gordon, 118 N. Y., 178 ; 28 St. Rep., 784 .

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 excludedbut, 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: “ Go 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 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 make 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 Hew Yorlc'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.

p. 611

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 its avoidance. His credibility was for that reason a main element for the consideration of the jury in reaching a conclusion concerning his 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 ; 33 St. Rep., 389 . Evidence tending to show that thermometers had for a long time before the contract 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, Ch. J., and Pryor, J., concur.

Footnotes

1 Affirming 47 St. Rep., 129 .