17 Barb. 538 | N.Y. Sup. Ct. | 1854
The action was brought by the plaintiffs to recover damages alleged to have been sustained by the non-delivery of grain, upon a contract entered into in May, 1846, and subsequently modified by parol, as alleged, between Adison Gardner and the defendant. The grain was to be delivered in the fall of 1846 and 1847. The cause of action was assigned by Adison Gardner to Nathan F. Graves, by order of *Judge Nye, in the course of a proceeding instituted against him under the non-imprisonment act of 1831. Graves subsequently Sold and assigned the demand in question to the plaintiffs in this suit. The answer denies the contract, in part, and sets up the non-performance of a condition precedent on the part of Gardner, to wit, a refusal to pay for the grain as delivered, by which it is claimed the defendant was discharged from its obligation. There are other denials and issues tendered and taken between "th'e parties, but it is not material to consider them in disposing of the "case as now presented to the court.
On the trial Adison Gardner was sworn as a witness on the part of the plaintiffs, and examined at great length in regard to-the contract and the alleged modification- thereof; the non-performance thereof by the defendant; the amount of grain delivered ; when and where the delivery was to bé made; the payments made to the defendant; and generally upon about all that the plaintiffs were required to prove to make out their case. On the part of the defendant, after the testimony of one witness had been given, the defendant offered himself as a witness, and the plaintiffs objected to his being sworn, on the ground "that as the assignment by Gardner to Graves was the result of a compulsory proceeding against Gardner, the code did not allow the defendant to offer himself as a witness in such a case. The code provides (§ 390) that when an assignee of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from him, the adverse party may offer himself as a
(1.) The provision of the code is general, allowing the party to be examined whenever the assignor has been introduced and has given testimony for the adverse party. We can perceive no reason for restricting it to the case of a voluntary assignor. The object of the code was to allow the largest latitude to the introduction of evidence, and to permit opposing parties to be confronted with each other in order that the jury may have the benefit of all that can be said by parties cognizant of the transaction ; leaving it to them to weigh, reconcile or discredit the tes-* timony in their discretion. An involuntary assignor is as much an assignor, as one who of his own motion qualifies himself to be a witness by making a voluntary assignment. But,
(2.-) We do not think Gardner was an involuntary assignor; He was proceeded against under the non-imprisonment act, but when brought before the officer who granted the order for his arrest, he was under no necessity of making the assignment; He had some four or five alternatives presented to him to avoid a • commitment under, the provisions of that act, either of which he was at liberty to embrace. He chose to deliver an inventory of his estate and execute an assignment of his property under the 3d subdivision of the 10th section of the act. This he was at liberty to do or to decline, and pursue some one or other of the different modes presented for his choice. In this he was a voluntary actor, and the assignment can in no just sense, therefore, be deemed a compulsory act. The objection was properly overruled, and the defendant sworn as a witness in the cause.
In a subsequent stage of his testimony, the defendant was inquired of as to an interview had by him with Dunham on the subject of the delivery and payment for the grain, and his readiness to deliver the balance. This testimony was objected to by the plaintiffs’ counsel, on the ground that it did not call for testimony upon the same matter as to which Gardner had been examined. How it is true that Gardner had not been examined as to the particulars of any interview of the defendant with Dun-ham, for Gardner was not present at any such interview- But
After the testimony on both sides was closed, the counsel for the plaintiffs submitted to the court several propositions in writing, in accordance with which he requested the judge to charge the jury. These propositions, being six in number, are set forth in the case, as well as the several refusals of the respective charges given thereupon by the court. In respect to the sixth proposition, the court did charge as the plaintiffs’ Counsel requested. In respect to four of them; but little serious complaint was made by the counsel, on the argument. We have examined the several refusals and the charges of the judge in regard to the 2d, 3d, 4th and 5th propositions propounded by the plaintiffs’ counsel, and we think they are all warranted by the case as it appeared in evidence; that each and all of them
In respect to the first proposition, the refusal of the Judge to charge in accordance therewith, and the charge actually given by .him, a more serious question arises. To understand the proposition, it must be borne in mind that the original contract between Gardner and the defendant was in writing, and is set forth in the complaint at fol. 304, precisely as it was afterwards proved on the trial. But this contract, it was claimed by the plaintiffs and not denied by the defendant, was subsequently modified by parol between Gardner and the defendant, although they greatly differed in tlieir testimony as to the terms of the modification, and the great point of the case was to ascertain how far, if at all, that contract was modified on the subject of the right of the defendant to be paid for his barley as delivered. Upon this question, his liability under the contract, or his discharge from its obligations, turned. The plaintiffs’ counsel asked the court to charge that “the defendant, upon the contract as proved by Gardner, was not entitled to any pay for the barley until the whole which he had contracted to sell had been delivered,” Now the court was entirely right in refusing to charge in the language of this proposition, for the plain reason that the testimony of Gardner, standing alone, did not prove, nor conduce to prove, any such contract as was claimed. To arrive at any just conclusion on this point, it was absolutely necessary to go back to the original contract; and it was only by taking that, in connection with Gardner’s testimony, that the court or the jury could come to any judgment as to what in this respect the real contract between the parties was. It is well settled that a request to the judge to instruct the jury must rest upon undisputed facts or a hypothetical casé. If the proposition submitted is incorrect, either in fact or law,, the judge may refuse to give the instruction. (5 Denio., 595. See also Lyon v. Marshall, 11 Barb. S. C Rep. 241.)
The judge was right, therefore, in refusing to give the instruction requested; but the refusal was accompanied by a charge, that the main question in the case was, whether Gard
Such was emphatically the case here. Without the aid of the written contract the testimony of Gardner was unintelligible; and how far that was modified was the point to be gathered from the parol evidence. The language of the judge is doubtless liable to some criticism, and the proposition was not put forth quite as clearly, nor indeed as broadly, as it should have been; but it was substantially correct, and in accordance with a well settled legal 'principle. Indeed, it was more favorable to the
Hubbard, Pratt and Bacon, Justices.]
We are satisfied that the ends of justice have been substantially attained in this case, and a new trial is accordingly denied,