Murphy v. Boker

The learned judge, before whom the cause was tried, submitted a single issue of fact to the jury, to wit, whether the articles tendered by the defendants, in satisfaction of the contract in controversy, were such as were generally known to the trade as plain seasonable No. 1 (Buffalo) robes, and on all other points ruled as requested by the plaintiffs. He called their attention to the fact, that there was a certain assortment of robes known in the trade as “ P. Chouteau’s No. 1 plain seasonable,” and that was a standard description. ® ® But the words used in the contract were “ plain seasonable No. 1,” the word “ Ghouteau” not being introduced. No exception was taken to the charge. A motion for a new trial on a case was denied. An appeal is .taken from the order denying it, as well as the judgment. The main ground for moving to set aside such verdict is, that it was so clearly against evidence as to shew partiality, prejudice or ■ misapprehension on the part of the jury. And the admission of evidence to prove a mistake in the contract, which it failed to establish, is supposed to have contributed largely to such result.

The testimony of six witnesses was directed to the issue thus submitted to the jury. Two beside the plaintiff, Murphy and their porter, (Ball,) were introduced on the part of the plaintiffs, to wit, Mr. Bourton, a dealer in buffalo robes, and his porter, (McKenna,) and two on the part of the defendants, one of them, to wit, Mr. Kerbeck, a dealer in furs, and his salesman,

The onus lay on the plaintiff of establishing what was meant by plain seasonable No. Vs; and if it meant only according to Chouteau’s standard, that it did so even when no such name was expressed. There was evidence enough in the case to sustain a finding that it- did not, and that it was intended merely to describe an assortment of a high character within ten or twenty per cent of that standard, and that the limits were very vague. It is evident from the whole testimony of the plaintiff and his porter, that they were testifying as to the inferiority of the goods tendered, measured by the Chouteau standard. Neither of them describe the nature of the imperfection or inferiority stated by them, although Ball described the different grades of robes and the titles by which they are known. There was room therefore for the jury to infer that there was no such absolute standard as plain seasonable No. l’s without Chouteau’s name ; or that it had a wide scope as to the quality of the goods; or that the plaintiffs did not make out a specific difference between the goods tendered and that standard. That verdict has been sustained by a justice of this court at special term in the exercise of his discretion. And even if we would have come to a different conclusion sitting in the place of the jury, that would not warrant •an interference with the verdict. (Stoddard v. Long Island R. R. Co., 5 Sandf. 180 . Dart v. Farmers’ Bank at Bridgport, 27 Barb. 337 .) There is. certainly no such preponderance of evidence as to induce us to think that the verdict of the jury originated in either passion, prejudice or a mistake.

It is said, however, that the jury were allowed to hear and were not directed to disregard certain testimony admitted to establish an issue made by the defendants of a mistake in the contract, with a view to its reformation. It is very evident that the court never exclude relevant testimony because it does not establish at once the issue to which it relates. The different links must be‘introduced in succession. The party against whom it is-introduced is' amply protected against any prejudice by his right to call on the court to direct the jury to disregard it for all purposes, where it is not prima facie evidence of any material issue. Where his counsel neglects to do so, the court has the right to presume he does not think the evidence of sufficient importance to, require such a caution. It is no ground of complaint that the court in such a case has not volunteered to, warn the jury against being misled, or a reason "to grant a new.trial on the ground of an oversight.

Every exception in the case bears on matters relating to the sole issue submitted to the jury. In reference to evidence, therefore, rejected as not bearing on such issue although competent for other purposes, no exception would lie. (Purchase v. Mattison, 6 Duer, 587 .) An exception was taken to a witness being required to answer what the quality of certain robes bought by him from the same lot as those bought by the plaintiff was, upon the ground that the defendants admitted in their answer that the latter did not correspond with the contract ; whereas the answer in its second defense alleged a tender to and refusal by the plaintiffs of the baffalo robes agreed, to be sold, which took away the ground of such exception. The plaintiff Murphy was prevented from testifying whether any thing was said in his negotiation with the defendant Frinke about Icnowing what such robes were. That was claimed to be admissible because such defendant gave as a reason on his

The verdict of the jury being warranted by the testimony, and no exception to evidence being well taken, it will not be necessary to consider the other views taken by the counsel for the defendant. The grave questions: whether the contract was not void under the statute of frauds ; whether a particular parcel of goods in a particular store only was sold ; whether, the use of the words plain seasonable No. 1, made a representation or a warranty, and if the former, whether the defendants were liable without proof of a fraud ; or if the latter, whether the refusal by the plaintiffs to receive the goods did not rescind the contract, are not necessary to be passed upon.

The order denying a new trial, and the judgment, must be affirmed, with costs.