Rollins v. Griffin

was a part of the contract that this horse should have been put in races that he might have evidenced his speed, and that owing to the carelessness, negligence or want of good faith on the part of the plaintiff, this was not done, he cannot recover.” The plaintiff’s case rested almost, if not entirely, upon his own testimony, and yet the verdict of the jury for him would not be disturbed, except for the admission over defendant’s objection and exception of testiomony to “ plaintiff’s general reputation as trainer of thoroughbred horses, and as to his honesty in that respect.” (Folio 143) Mr. Crickmore, the secretary of the Monmouth Park Association and the New York Jockey Club, was allowed to so testify against objection and exception ; (Folio 84), so too Mr. Kerwin, a gentleman who “ had raced horses in Canada and all over ” (folio 128) Mr. Knapp “ an owner of race horses ” (folio 137), Mr. Robinson, who “ owns racing stock” (folio 140) and Mr. Hyland, “ a trainer for twenty years, of thoroughbred horses ” (folio 143). The defendant did not by proof or offer of proof, put plaintiff’s character in issue by assailing his reputation as trainer of thoroughbred horses, or his honesty in that respect. The plaintiff’s proof of performance of his contract to keep and train the colt, although uncontradicted, depended entirely upon his own testimony, while the fact whether lie had been authorized to run the colt in races and had negligently failed to do so, was in dispute ; hence it was proper to submit the case to the jury. The uncontradicted testimony of the five witnesses as to plaintiff's unassailed reputation as a trainer of thoroughbred horses and his honesty in that respect must have influenced the jury in his favor. The general rule of evidence, in civil proceedings is that the character of a party is irrelevant except when the nature of the proceedings is such as to put the character in issue, and these exceptions usually arise in actions for breach of promise of marriage, libel and slander, and malicious prosecution,etc.,but a mere charge of fraud does not put character in evidence in actions ex conlractio, nor in actions ex delicto. Gough v. St. John, 16 Wend. 647 ; Fowler v. Aetna F. Ins. Co., 6 Cowen, 673. In the former, an action on the case for a fraudulent representation, the defendant was allowed at trial to introduce evidence of his good character, and Oowen, J. writing, says: “ Another conclusive ground for a new trial is the admission of testimony to good character.” And Chief Justice Nelson, concurring says : “ I concur in the opinion that a new trial should be granted on the ground that the judge erred in the admission of evidence of the character of the defendant,” and cites with approval, the Fowler case, supra, in which the charge was made by pleading and evidence that plaintiffs had been guilty of obtaining a fraudulent overvaluation of goods destroyed by fire, and they were allowed to introduce evidence of their good character for honesty, and the judge writing therein for reversal, says, “If such evidence is proper, then a person may screen himself from the punishment due to fraudulent conduct, till his character becomes bad. Such a rule of evidence would be extremely dangerous. Every man must be answerable for every improper act, and the character of every transaction must be as

certained by its own circumstances, and not by the character of the parties.” The admission of the evidence as to plaintiff’s general reputation as trainer of thoroughbred horses, and as to his honesty in that respect, was reversible error, and forces the reversal of the judgment and the granting of new trial with costs to appellant to abide the event.

Ehrlich, 0. J. and Fitzsimons, J., concur.