Norton v. Parsons

67 Vt. 526 | Vt. | 1895

ROWELL, J.

The orator and the defendant, St. Pierre, were partners in the whip business, and their firm name was The Rock Island Whip Company. Before and at the time of the formation of their partnership, the orator had been and was carrying on the business under the same name. The co-partnership agreement between them provided that neither should draw any money from the partnership funds during the term, above his salary, except what might be “required for the payment of the debts of The Rock Island Whip Co.” To show that the debts of the old company were thereby meant and not the debts of the new, the orator testified before the master without objection that said agreement was •drawn by attorney Hackett, who said to him and St. Pierre when it was drawn, that said words, “The Rock Island Whip Co.,” meant the old company and not the new.

To meet this, St. Pierre was asked on the stand, whether he ever heard a suggestion or claim made by the orator or Hackett, before or at the time said agreement was drawn, that said words meant the old company and not the new. The question was objected to as leading and incompetent; but the objection was overruled as matter of law, and the witness answered it in the negative.

As to the objection that the question was leading, it was properly so as far as it related to what the orator testified that Hackett said at the time the agreement was drawn, for it has long been quite the practice in this state, when a witness is called to contradict one who has said that such a thing was said or done, to ask leadingly whether the thing was said or done, although for one, I think the non-leading method is preferable even here.

As far as the question related to time antecedent to the time when the agreement was drawn, the answer could not have harmed the orator, for it was simply impossible.for the witness to have heard either of those persons say anything about the meaning of those words as used in the agreement before it was drawn; and as iar as'it related to what the orator did or did not say at the time it was drawn, the answer could have done no harm, for the orator made no claim of having said anything at the time, and clearly, in the circumstances, no unfavorable inference could have been drawn against him from his silence. Nor was the question irrelevant in the part that went to the matter of the orator’s testimony ; and if irrelevant in the rest, the answer was harmless, as we have seen.

St. Pierre was further asked whether he heard the defendant, Parsons, say at a certain interview at which the orator and the defendants were present, that he had bought the whips in controversy and paid for them, but would return them if his money was refunded, “ or that in substance.” To this question the orator objected as leading and incompetent; but the objection was overruled as matter of law, and the witness answered, “I did.” Before this, the orator denied on cross-examination that Parsons said any such thing at that time. The criticism of the question is now bestowed wholly on the words, “or that in substance,” for that they left the witness free to put his own interpretation upon what Parsons said, without stating the substance of the language he used. But we construe those words to refer to the language used by Parsons and not to its meaning, as if they had been, “ or those words in substance.” In this sense the question was perfectly proper ; and if the orator thought in the time of it that the witness was undertaking to give the substance of what Parsons meant instead of the substance of what he said, he could easily have found out how it was by inquiry.

What is said of this question is an answer to a similar objection to the eighth question put to this witness, and also h> the objections to questions fourteen and fifteen put to the witness Darling.

The orator claimed that the sale in question was fraudulent as to him on the part of both defendants, and so St. Pierre was asked whether it was bona fide or not, or whether he retained an interest in the whips after they were delivered to Parsons and paid for. The orator objected to the question, but did not state the ground of his objection, and the objection was overruled and the question answered. When objection to a question is such that it can be obviated,, as this was, correct practice requires that the objection be stated, that the examiner may obviate it by reforming the question if he will. This rule is especially applicable to depositions ; but it is a good general rule, and promotive of justice, for otherwise the objection would serve merely as a. trap in which to catch the other party.

The complaint that the orator was improperly precluded from cross-examining the witness Norris concerning the prices he paid for thread in 1893 is not well founded, for before the master ruled that the witness need not answer, because his company had agreed with the firm of which it bought not to divulge the prices, he had answered that he could not tell, as he had no list present. This was a full answer to the question put, as far as the prices of thread were concerned; and as there was and is no suggestion that the answer was not true, it seems reasonably clear that the orator could have gained nothing, in the circumstances, by further inquiry.

The sole ground of the bill for recovery against Parsons is, that he purchased the whips for the purpose of defrauding the orator; and as this is negatived by the findings of the master, no decree can be had against him on the facts disclosed. Nor can there be a decree against St. Pierre as the case stands, both on the pleadings and the facts ; for he must be charged, if at all, as partner, and the bill does not seek to charge him as such, and indeed does not seek to charge him at all, for in allegation and special prayer it seeks to charge Parsons only; and the facts found are no more to the purpose of charging St. Pierre than the bill is. It thus clearly appears that hitherto the orator has not designed to charge St. Pierre in this action, but only Parsons; but he now asks that the decree in favor of St. Pierre be reversed, that he may proceed against him for a settlement of their partnership affairs. But to proceed thus would necessitate an amendment of the bill that would make an entirely different case from what is now made by it. While the allowance of amendments of equity pleadings is matter of discretion, the exercise of which will depend largely on the special circumstances of the case, yet great caution should be used when the application comes, as here, after the litigation has continued a considerable time and reaches the court of last resort; and an amendment should rarely, if ever, be allowed wrhen it would materially change the very substance of the case made by the bill and to wfhich the parties have directed their proofs. Hardy v. Boyd, 113 U. S. 756. In Lyon v. Talmadge, 1 Johns. Ch. 184, it is said that the indulgence of amendment should not be carried to the extent of granting leave to make a new bill; that if the bill be found defective in prayer for relief, in want of parties, or in the omission or the mistake of a fact or circumstance connected with the substance of the case but not constituting the substance itself, an amendment is usually granted ; but that the substance of the bill must contain ground for relief, and that there must be equity in the case when fully stated and correctly applied to the proper parties, sufficient to warrant a decree. See, also, Hill v. Hill, 53 Vt. 578.

This rule would preclude the orator from obtaining leave to make the necessary amendment if the decree against St. Pierre should be reversed for the purpose asked, and therefore a remand for that purpose would not avail him.

Decree affirmed and cause remanded.