79 Vt. 122 | Vt. | 1906
Assumpsit for the price of an automobile sold and delivered as part of a written contract of agency between the parties for the sale of the plaintiff’s automobiles by the defendant in the northeastern counties of this State.
The cross-examination of the plaintiff’s witness, Karl Grout, as to the contents of the written contract of agency between them and St. Jock & Blodgett, was harmless, as it elicited nothing but the inability of the witness to remember anything about its contents.
No exception was taken to the admission of secondary evidence of the contents of said last-mentioned contract, but only to the admission of any evidence of its contents, because it was claimed to be immaterial what that contract was, as it appeared that nothing was ever done under it. But that contract became effective between; the parties, and was a breach by the plaintiffs of their contract with the defendant here in question, as it assigned a part of the defendant’s territory to St. Jock and Blodgett. Hence it was material to show what that contract was, and it is no answer to say that nothing was ever done under it; that objection goes to the damages, not to the right.
The exception for immateriality to allowing St. Jock to testify that in the summer of 1903 the public demanded fusible plugs in steam automobiles, cannot be sustained. The evidence bore upon the value of the automobile in question, especially for demonstrating purposes wherewith to sell others, for which purpose the defendant bought it, as the plaintiffs knew.
So what the plaintiffs told Blodgett at their factory in April, 1903, about the use and purpose of fusible plugs, was evidence against them of their utility and need.
The testimony on the part of the defendant as to what transpired at the plaintiffs’ repository in Boston on the 20th of
It is said, however, that if Walker was plaintiffs’ agent, there is no evidence that his statements were within the scope of his authority. But the testimony that tended to show his agency, also tended to show, that his statements were within its scope. And those statements were a part of the res, as they related to the very contract here in question. It is not necessary that they should have been simultaneous with the conclusion of the contract, but only that they should have been made during the negotiations that led to the contract, have influenced the defendant in making it, and entered into it as a part thereof; all which the testimony tended to show. Hobart v. Young, 63 Vt. 363, 369.
The contract in question required payment for the car on delivery and “satisfactory demonstration.” The plaintiffs proved what' “demonstration” means as understood in the trade. Then the defendant, as tending to show what the parties understood it to mean as used in the contract, proved, under exception, the direct oral statements of one of the plaintiffs, made at the time the contract was executed, to the effect that if the defendant had prospective customers when they sent a man to teach him how to run the car, they would show it up to them, and if he had some prospective customers up in his section, they would help him sell to them; all which, the defendant claimed, the plaintiffs had neglected and refused to do.
The admission of these statements was error, unless the defendant’s claims to the contrary, or some of them, are sus
Here the words, “satisfactory demonstration,” though their trade meaning may be uncertain on their face, are not shown by extrinsic evidence to be equivocal, and therefore the case is not within the exception to- the rule that you cannot enlarge a written contract by oral evidence. Hart v. Hammett, 18 Vt. 127, illustrates that exception. There the contract was for the sale of “winter strained lamp oil.” It was proved that these words as generally used in the oil trade applied indifferently to winter strained sperm lamp oil and to winter strained whale lamp oil, and that sperm oil was better than whale oil, which was the oil delivered. In this state of the case, oral evidence was held to be admissible to show that at the time of the execution of the contract the defendant showed to the plaintiff a sample of the oil to be delivered, and told him it was not sperm oil. New England Granite Works v. Bailey, 69 Vt. 257, is a similar case. There the contract was for a monument of “white Westerly granite.” The monument erected was of a reddish or chocolate cast. It was found that there are different varieties of Westerly granite known to the trade as white Westerly granite; some of which has a reddish or chocolate tinge when polished or hammered, and some, a grayish-white tinge. It was held permissible for the defendant to show that at the time the contract was made it was orally agreed by the parties that the latter variety should be used.
But the defendant says that the testimony was admissible to meet the plaintiffs’ evidence of the meaning of “demonstration” as understood in the trade. 'But that evidence did not touch the matter of the oral statements objected to, and did not open the door for them. The same kind of evidence was given in St. Martin v. Thrasher, 40 Vt. 460, and yet direct statements of intention were excluded.
The defendant also says that it was all a closely connected part of a conversation in which the plaintiff made an admissible declaration as to' what constitutes “satisfactory demonstration” — an admission of what he understood that expression to mean, and that therefore all he said on the subject at the time was admissible as a part of said declaration. But what
It is further claimed that the statements were admissible because the document is not dispositive, but only evidentiary. But we think it dispositive. It is signed by both parties, and contains mutual promises. In it the defendant agrees to buy one automobile, and pay so much therefor on delivery and satisfactory demonstration. If he buys four more by such a time “after the one bought this day,” the plaintiffs agree to allow him so much commission on the five.
It is further claimed that the statements were harmless, as the court instructed the jury to disregard them, and that the words, “satisfactory demonstration,” did not include sending a man around with the defendant to help him sell machines. But their harmlessness does not appear. The case comes clearly within the rule that error in the admission of evidence cannot be cured by instructing the jury to disregard it. State v. Meader, 54 Vt. 126.
As to defendant’s testimony on re-examination, that he should not have purchased an old model machine for a demonstrating cai‘ had he known it, it is enough to say that it does not appear but it was made admissible by the cross-examination.
If it was matter of law and not of fact, as claimed, whether the defendant accepted the automobile, it was harmless to submit it to the jury, for it found acceptance, as the case ■shows by necessary inference, for otherwise the verdict would not have been warranted.
The plaintiffs excepted to submitting to the jury whether they personally or by their agents represented to the defendant that the car they sold him was a 1903 model, but only •on the ground that there was no evidence tending to show
The charge on the subject of damages “as per defendant’s requests” was excepted to, but no ground stated. It was that the evidence tended to show that there was a market for Grout automobiles in certain of defendant’s territory, and that at least three might have been sold there with satisfactory demonstration. Plaintiffs claim there was no evidence warranting the charge. Defendant claims the contrary, and that the exception is too general to be available. But it would serve no useful purpose to decide the matter, it is so likely to be changed on another trial.
The motion to set aside the verdict for want of evidence to sustain it was properly overruled.
Reversed cmd remanded.