McCarty v. Edwards

24 How. Pr. 236 | N.Y. Sup. Ct. | 1861

By the court, Hogeboom, Justice.

The plaintiff made several propositions and objections on the trial of the cause, which were overruled. It will be convenient to consider them in their order :

1. Plaintiff asked that the issues of fact be tried by a jury. He was not entitled to this as a matter of right, (Code, §§253, 254.) It was, therefore, a matter of discretion, and not reviewable. The discretion has not been abated. The action seeks equitable relief, and such are to be tried by the court. (Cheesebrough agt. Houck, 5 Duer, 125; Wilson agt. Forsyth, 16 How., 448; Moffatt agt. Van Doren, 4 Bosw., 610.)

2. The further applications then made by the plaintiff— to settle issues instanter, after the time to settle issues had elapsed, and the plaintiff had lost his right thereto; to amend the complaint instanter, and strike out of the prayer all except the demand to recover $335 and interest, and proceed to a jury trial immediately—thus changing essentially the nature of the action and the mode of trial, and apparently for the sole purpose of getting the cause before a jury;—to put the cause over the circuit to enable the plaintiff to move to amend the complaint or settle issues, without any sufficient reason being given therefor, without any allegation or proof of surprise or want of preparation for the trial, were all, I think, properly overruled by the judge at the circuit, and were addressed to a discretion with which we cannot interfere.

3. The plaintiff also made several objections to the defendant’s evidence, the most important of which I will notice: .

1. “ Plaintiff objected to the reading of letters addressed by defendant’s agents to him.” The objection amounts to nothing. It does not specify what letters, or what agents, or why the letters would be improper. If the objection refers to the letters of Nichols & Go. to defendant, it might be argued with some force that they were plaintiff’s agents. If otherwise, their letters might, in a certain aspect of the case, be proper, as showing good faith on the part of the defendant, the course he took in investing the plaintiff-’s money, and reasons for delay in not prosecuting them for the money.

2. Plaintiff objected to the reading of defendant’s testimony taken under commission: 1. “ Because there is no authority to examine a party by commission, granted Feb. 18, 1859;” we have held the reverse in Bigelow agt. Mallory, (17 How., 427.) 2. “ Because the cross interrogatories are not all answered.” On inspecting them, we find they are all answered—some of them, it is true, in whole or in part by reference to previous answers. This I am inclined to think not objectionable if the previous answers are full and explicit, precise and definite, and the reference to them exact and specific. But whether so or not, no such objection was taken, nor would the court imagine that such a point was intended by the language in which the objection was couched. We cannot give effect to such a strained construction of language. (Valton agt. National Fund Life Insurance Co., 20 N. Y., 34.)

3. Plaintiff objected to the answer to the 4th interrogatory “ as a conclusion of the witness.”

On examining the answer, we find that it contains more than a page of printed matter, and a large number of specific facts which cannot, in any sense, be regarded as mere opinions or conclusions of the witness. The objection is, of course, wholly unavailable. It embraces matter wholly unobjectionable, and its generality and indefiniteness would be good cause for overruling it.

4. Plaintiff objected to the answer to the 8th interrogatory because it is hearsay and secondary, proving his declaration in his own favor.

A portion of this answer, which goes to show the efforts made by defendant to invest the plaintiff’s money, and thus to resist the imputation of bad faith, delay and negligence on his part as the plaintiff’s agent, was certainly pertinent and proper. Some of the letters referred to in this answer were lost and unable to be found after diligent search, and therefore not necessary to be produced. The objection, therefore, that it was secondary, would be unavailable to that part, and hence unavailable as to the whole, because embracing unobjectionable matter—unavailable also for the same reason, because a portion of the parol testimony was proper.

5. Plaintiff “ objected to that portion of the answer to the 9th interrogatory, which states what defendant said in conversation with Nichols, and what he wrote to Nichols, because his reason for writing the letter is not a fact, and the letter itself is not produced.”

The answer to the 9 th interrogatory embraces about two pages of printed matter, and after perusing it, I do not discover that it states any thing of “ what defendant said in conversation with Nichols,” nor any thing “ that he wrote to Nichols.” The objection, therefore, seems to be without any point, if indeed we were authorized to give any consideration to an objection so general and indefinite as applied to an answer two pages in length. Some letters are mentioned in that answer; some written by the defendant to the plaintiff, which are produced ; some written by Nichols & Co. to the defendant, one of which was produced ; another not produced, the contents of which the witness did not disclose beyond alluding to a fact stated in it, that they would be able to enter plaintiff’s land in a few days, which was a fact defendant would have a right to state on information, as a probable motive for the contents of his letter to the plaintiff, written shortly afterwards.

An objection is also taken to this answer, because it states that Nichols became embarrassed by the erection of a large block of. buildings. I think this was not wholly irrelevant, inasmuch as it tended to show why defendant had not invested the plaintiff’s money, and why, if not invested, he had not been able to get it back from Nichols; and why he wrote to plaintiff, requesting liberty to sue Nichols and attach his property.

6. Plaintiff “ objected to part of the 14th interrogatory.” This interrogatory is the general and usual one attached to interrogatories sent by commission. The objection is pointless, if not, in the manner it is made, ridiculous.

7. Plaintiff objected to the evidence of the other witnesses taken on commission, that the interrogatories are not all answered. This is incorrect in point of fact, and has been already fully considered.

8. Plaintiff further objected “ to the 8th, 9th and 11th interrogatories as immaterial, and the answers to the same.”

The 8 th interrogatory related to letters written by defendant to plaintiff relative to the embarrassment and insolvency of Nichols & Co., and to the fact of ownership of any property by Nichols & Co., out of which plaintiff’s debt could be made, and cannot be said to be wholly immaterial, as they tended to explain and justify the defendant’s conduct, and repel the imputation of bad faith, negligence and delay, contained in the plaintiff’s letters to the defendant. The answers to this interrogatory are pertinent for the same reason.

The 9th interrogatory inquired as to any offer made by Nichols to convey to plaintiff 240 acres of government land in Minnesota. This was also proper or admissible, as explanatory of defendant’s conduct, to whom Nichols made the offer, and who communicated it to the plaintiff, and as tending to show diligence and activity on the part of the defendant in securing plaintiff against loss. The answers thereto are also proper for the same reason.

The 11th interrogatory was the usual general one, requesting the witness to state any other matter within his knowledge, beneficial to the defendant, and embraced within the issues in the action. Neither this nor any pertinent answers to it, (and so far as given they seem to be pertinent,) can with any propriety be said to be immaterial.

I have seldom seen any objections to testimony less specific or less significant than these appear to be, as presented on the bill of exceptions; and I am inclined to think that all of them might with great propriety have been summarily condemned for that reason. But on analyzing the testimony, with a view to see if the plaintiff would suffer from such a disposition of his objections, I am unable to discover, so far as our attention has been drawn to-it, that the judge excluded any testimony which was material to the case, or admitted any erroneously, which tended to prejudice the plaintiff’s case.

The weight of testimony on the merits is with the defendant, and appears to have abundantly justified the conclusions at which the judge arrived.

It is obvious that the plaintiff entertained an erroneous impression of the nature and legal effect of the contract between the parties.

The receipt of April 8, 1856, given by the defendant to the plaintiff, was in the nature of a contract between the parties, and was obligatory upon them. (Creery agt. Holly, 14 Wend., 26; Eggleston agt. Knickerbocker, 6 Barb., 458; Wolfe agt. Myers, 3 Sandf., 7; Niles agt. Culver, 8 Barb., 205.) It expressed the terms on which the defendant received the money, to wit: to be given to agents in Iowa, and to be invested in government lands under defendant’s direction. This negatived the idea that he was to make the investment in person, or to be responsible for a neglect to do so on the part of others, provided he, as the agent of the plaintiff, exercised proper care and diligence, in the selection of agents and in directing the investment. I am unable to see that he was guilty of laches or misconduct in this respect. It would seem that the agents intended by the parties, were mentioned at the time this writing was entered into, and they, or one of them, did reside in Iowa, although they did business also in Minnesota. These were the persons into whose hands the plaintiff’s funds were promptly placed by the defendant.

It is a mistake to suppose that the contract required the investment to be made in Iowa lands. Such is not the construction to be given to it; and if it was the place of location, it was changed from Iowa to Minnesota, by the consent of the plaintiff.

It is matter of regret that the plaintiff’s funds have been lost, but it appears to have been without the defendant’s fault.

I think the findings of the court below were justified by the evidence ; and if it were a case of doubtful testimony, effect must be given to the principle which forbids a reversal after a fair trial before a competent tribunal hearing the testimony, and more able than any other to estimate its due weight and credibility.

The judgment of the circuit court should be affirmed, with costs.