Lead Opinion

*564 CHERRY, J.

Tbe plaintiff sued tbe defendant for $180.92 for tbe balance of an account for peacb baskets sold and delivered and for money lent to defendant. Tbe defendant put in a counterclaim alleging that be bad sold and delivered 1,500 bushels of peaches to plaintiff upon the terms that plaintiff would pay him 75 cents per bushel therefor, and, “in tbe event that said peaches when sold would warrant same, tbe plaintiff would pay tbe defendant any additional sums for which said peaches would sell for over and above tbe costs of tbe baskets and tbe plaintiff’s commission”; that plaintiff bad delivered him peacb baskets of tbe value of $395, and paid him $100 in money, and bad “failed and refused to render any accounting of tbe sale of said peaches.” Defendant prayed for judgment against tbe plaintiff for $630, with interest. Tbe reply of plaintiff to tbe counterclaim was a general denial. A trial by jury resulted in a verdict for tbe defendant in tbe amount prayed for in bis counterclaim, and from tbe judgment entered thereon plaintiff has appealed.

Tbe only error assigned or complained of is the admission of certain evidence offered by defendant over tbe objection and exception of plaintiff.

It was admitted that tbe plaintiff had delivered tbe peach baskets to defendant, and bad paid him $100 in money. It was also admitted that tbe defendant bad delivered 1,500 bushels of peaches to plaintiff. Tbe only issue in tbe case was tbe terms upon which tbe defendant delivered bis peaches to the plaintiff; it being claimed by tbe plaintiff at the trial that they were delivered upon consignment to be sold on defendant’s account. Tbe defendant, in support of his contention, testified that tbe plaintiff offered to take bis peaches “on consignment,” but that be declined the offer, whereupon tbe plaintiff’s manager stated:

"I can guarantee 75 cents a bushel, and I think X can get you 90 cents or $1; however, I will guarantee that they will net you 75 cents.”

*565 The defendant stated that be agreed to tbe proposal, and thereafter delivered 1,500 bushels of peaches to the plaintiff. The peaches were loaded in railroad cars at different stations and at different times. That other growers in the locality (naming seven witnesses who subsequently testified as to the fact) loaded peaches in the same cars with defendant and each other whereby the peaches delivered by the defendant were commingled with those delivered by other growers. The defendant then produced as witnesses four of the growers who had delivered peaches to the plaintiff and had loaded them in the same cars and at the same times and places as defendant, three of whom testified separately over the plaintiff’s objection that he had sold his peaches to the plaintiff at 75 cents per bushel, and.one of them testified, “Well, I consigned mine.” The admission of the evidence of the three witnesses above referred to is the ground relied upon by the appellant for a reversal of the judgment.

On behalf of the plaintiff its manager testified that he agreed to take defendant’s peaches “upon a strictly consigned basis,” and did not guarantee 75 cents per bushel. He testified that he advanced $100 to defendant on the transaction, and that later “a statement as to where his peaches had gone and where they had been sold” was furnished to the defendant. The contents of the statement were not shown, and nothing was made to appear relating to the prices obtained for defendant’s peaches or the net proceeds of the sales. The defendant denied receiving any statement or account at any time.

An employé of the plaintiff testified that she heard the defendant say that he had consigned his peaches, and the plaintiff produced three peach growers (from the number which defendant testified had loaded peaches at the same times and in the same ears with himself), each of whom testified that he had delivered his peaches to the plaintiff “on consignment.”

Upon substantially the foregoing evidence the jury found for the defendant.

The question to be determined is whether the reception of *566 the evidence complained of by appellant affords grounds suf-, ficient to warrant a reversal of the judgment.

The cases are generally to the effect that contracts, or their terms, in case of dispute, cannot be proved by evidence that one of the parties has made other similar contracts with other persons. 11 Ency. Ev. 780, 783. Professor Wigmore, however, says that the evidence as a class is not inadmissible; that there is merely a question in each instance of the probative value of the particular facts .offered. 1 Wigmore, Ev. § 377 (3). And there is respectable authority for the proposition that the admission or exclusion of such evidence^ is within the discretion of the trial court, subject to review only in case of abuse. 22 C. J. 744; Bone v. Hayes, 99 P. 172, 154 Cal. 759; Wilkinson v. Dilenbeck, 168 N. W. 115, 184 Iowa, 81. In the latter view the test of admissibility is the degree of probability that the course pursued in one instance would be followed in the other. The defendant’s contract, as testified to by himself, was a consignment contract with a guarantee of 75 cents per bushel. The evidence objected to was that three witnesses each sold his peach crop to the plaintiff at 75 cents a bushel, which was a variation from defendant’s contract. And the defendant produced a fourth witness who testified to a contract with the plaintiff which differed from them all. In these circumstances we have no hesitancy in saying that the evidence under consideration was wholly without probative value, and that it should have been excluded.

But it does not follow that the judgment must be reversed for the error. The plaintiff produced three witnesses who each testified that he disposed of his peach crop to plaintiff “upon consignment.” There was no dispute whatever as to the terms upon which any of the third persons had dealt with the plaintiff, or that the terms of their contracts differed from each other and all differed from the contract asserted by defendant. If any inference or presumption at all was deducible from the contracts made with third persons, it was in favor of the plaintiff’s contention, because four of the seven witnesses who testified upon the subject testified to having made contracts identical with what the plaintiff *567 claimed was its contract with the defendant, and neither of the seven testified to a contract identical with the contract as claimed by defendant. We are nnable to say from this record that the plaintiff was affected or injured in any substantial right by the error complained of. The verdict of the jury must have been the same had the evidence objected to been excluded. Knowlton v. Thompson, 218, P. 117, 62 Utah, 142.

Judgment affirmed.

GIDEON, C. J., and FRICK, J., concur. THURMAN, J., dissents.

Concurrence Opinion

STRAUP, J.

I concur in the holding that the evidence was erroneously received; but I dissent from the holding that the error was harmless. Neither do I concur in the stated view as to the test of the admissibility or exclusion of such kind of evidence, nor in the stated reason why it was erroneously received.

I think the law on the subject is as stated in 11 Envy. Ev. p. 780:

“The cases are generally to the effect that no reasonable Inference or presumption can be raised as to whether or not a party has made an agreement with one person from the fact, or the mode in which, he has made similar contracts with other persons. Transactions which fall within this class are termed in law res inter alios acta, and evidence thereof is universally rejected.

“Nor is it competent upon such an issue to resort to evidence of similar transactions between other persons.

“Where the contract sought to be enforced, however, is not an express contract, but is a contract implied from the conduct of the parties, necessarily, of course, circumstantial evidence is resorted to, and there are numerous cases in which evidence of similar transactions has been relevant and admissible.

"Where the question is as to the terms of an oral agreement, evidence of the terms of similar agreements with other persons is not admissible.

“Nor is evidence of the terms of other contracts between the same parties admissible upon such an issue.”

*568 The same doctrine is maintained in 1 Elliot, Ev. §§ 159, 160; Jones, Ev. §§ 140, 141, and by Wigmore in volume 1, § 377 (3), where he says that—

“The courts are generally inclined to exclude such evidence, and, in the majority of instances, properly.”

The reason for excluding such evidence is stated by Chamberlayne in his work on Evidence, volume 4, §§ 3154 and 3160, to be a want of probative value, and because such evidence has a tendency to confuse and mislead the jury, divert their attention from the real proposition which they are called upon to determine, raise collateral issues,, permit the jury to deal with a party’s rights, not on the basis of what happened in the ease, but on what occurred between others, and to take the party against whom the evidence is offered by surprise.

The defendant in effect alleged in his counterclaim that he sold his peaches to the plaintiff on consignment with a guaranty of at least 75 cents a bushel. Plaintiff denied that, and claimed that the transaction was a straight consignment without any guaranty. After the defendant had testified to the contract as alleged by him — an oral express contract without any ambiguity — he produced three witnesses, who, by counsel for defendant, were asked: “Upon what basis or terms was it that you made your sale and delivery” of peaches to the plaintiff? “What arrangement did you have with” the plaintiff “for the handling of your peach crop?” On what terms did you make your sales” to the plaintiff? And over plaintiff’s objections such witnesses were permitted to answer: “I sold my peaches for 75 cents a bushel,” “Why, they paid 75 cents a bushel,” and “They gave me 75 cents a bushel.” The defendant produced a fourth witness who testified that he sold his peaches on consignment. The plaintiff in rebuttal called three witnesses who testified that their peaches were delivered to the plaintiff on consignment without any guaranty.

In rendering the amount of verdict which was rendered in favor of the defendant on his counterclaim, the jury were required to find the terms of the contract, as alleged and testified to by the defendant, that the plaintiff had *569 guaranteed to pay him at least 75 cents a bushel for his peaches. The evidence so admitted over plaintiff’s objections had a tendency to do harm. As is seen, the main issue— about the only issue — submitted to the jury for its determination was the terms of the contract between the plaintiff and the defendant; the defendant having testified that the terms were as alleged by him, and the plaintiff that the terms were a straight consignment without any guaranty. It is apparent that the defendant offered the evidence objected to by plaintiff to sustain his allegation and claim that the plaintiff had agreed to pay him at least 75 cents a bushel for his peaches. Such testimony was put in by the defendant to so influence the jury and to induce them to so find; and, after the jury had so found and rendered a verdict in his favor upon the basis that the plaintiff had agreed to pay him at least 75 cents a bushel for his peaches, it now seems rather difficult for the defendant to maintain that the evidence complained of did not influence such finding. The terms of the contract in such respect having been in dispute, not only by the pleadings but by the evidence as well, it may well be that the admitted testimony complained of was the inducing cause of the jury’s finding that the terms of the contract were as alleged and testified to by the defendant. At any rate, I cannot see with any degree of certainty that the evidence did not so influence the result and the -verdict. Looking at the verdict, and it being made to appear that the jury rendering it was required to find the terms-of the contract as alleged and testified to by the defendant, I think it is made to appear that the evidence complained of in all probability did influence the verdict and accomplish the very purpose for which it was offered and admitted.

Judgments, of course, are not to be reversed for mere error or for error which does not affect the substantial rights of the parties. Comp. Laws Utah 1917, § 6622. That is but another way of saying that causes will not be reversed except for prejudicial error, which, long before the statute, was, and ever since has been, the rule in this and in other jurisdictions. But in 2 Hayne, New Trial & App. § 287, Revised Edition (1912), it is said:

*570 “Where error is shown, injury is presumed unless the contrary appears affirmatively. No rule is better, settled than this, it having been announced and acted upon from the earliest history of our Supreme Court to the present time.”

Many cases are cited by the author to that effect. Among others, Mr. Justice Baldwin in the ease of Jackson v. Feather River Co., 14 Cal. 18, is quoted that—

“We cannot see clearly that the defendants were not injured by this error. They might not have been; but the rule is, that every error is prima facie an injury to the party against whom it is made, and it rests with the other party clearly to show, not that probably no hurt was done, but that nonei could have been, or was, done by the error.”

The author also quotes the opinion of Mr. Justice Angellotti in the case of Short v. Frink, 90 P. 202, 151 Cal. 83, that—

“It is impossible for us to say to what extent this objectionable evidence influenced the jury in rendering their verdict. Its direct tendency was to prejudicially affect defendant by placing him in a most unfavorable light, and we must presume that it had that effect (citing a number of California cases). This error necessitates a reversal of the judgment.”

In State v. Cluff, 158 P. 701, 48 Utah, 102, this court said:

“Some committed errors, prima facie, are not calculated to do harm. Hence no' presumption of harmful effect is to be indulged. Nevertheless, the party against whom such errors are made may, by the record, demonstrate, if he can, that the rulings did result to his prejudice of some substantial right. On the other hand, error may be committed which, prima facie, is calculated to do harm and to affect substantial rights. From such error prejudice and harmful effect of such rights will be presumed until, by the record, it is demonstrated that the error did not have, or could not have had, such prejudicial or harmful effect.”

To the same effect is the case of State v. Brown, 115 P. 994, 39 Utah, 158, Ann. Cas. 1913E, 1.

From the authorities the rule may be deduced that, if the nature and character of the evidence erroneously admitted is such as has a tendency, or is calculated or likely, to do harm and injuriously affect him against whom it is admitted, then prejudice and harmful effect will be presumed until, on ¡the record, it affirmatively is made to appear that no harm or injury was done, or could have been done, 'by the error.

I think the evidence complained of here was calculated to *571 have, and did have, a direct tendency to injuriously affect the plaintiff in a substantial right, and that it is not affirmatively made to appear by the record that the error had no such harmful effect.

Because the plaintiff, after the rulings against it, put in evidence on the subject that in its dealings with others the transactions were but consignments without any guaranty did not cure the error nor render it harmless. Short v. Frink, supra.

It is stated that, since the three witnesses for the defendant did not testify that they consigned their peaches with a guaranty of 75 cents a bushel but sold them outright to the plaintiff for 75 cents a bushel, and one witness that he merely consigned his peaches to the plaintiff, the terms of their contracts were different from those of the defendant' as alleged and testified to by him, and hence such evidence had no probative value, and ought to have been excluded, thereby impliedly inferring that, had such witnesses testified that they sold or consigned their peaches on terms as alleged and testified to by the defendant on which he sold or consigned his peaches, such evidence would have been admissible. In such case I think the evidence equally would have been inadmissible. In such respect I think it immaterial whether such contracts were similar or dissimilar to those as alleged and claimed by the defendant. The rule is that, where an express and unambiguous contract, whether oral or written, is relied on and made the basis'of recovery, the terms of which are in dispute, it is neither relevant nor competent to show the terms of contracts made by one of the parties with others, regardless of whether such contracts are similar or dissimilar to the contract in question, except where questions of agency, intent, purpose, fraudulent schemes or plans, or scienter, etc., are involved, none of which elements being here present.

It is further stated as none of the testimony of the witnesses for the defendant, nor for the plaintiff, in such respect was disputed, and since four witnesses testified that they sold their peaches on consignment without any guaranty, and no witness testifying that he sold or consigned his peaches on terms on which it was claimed by the defendant that he sold *572 or consigned bis peaches, that whatever inference was deducible from such testimony was in‘favor of the plaintiff and against the defendant, and for that reason the evidence complained of had no harmful effect. To assert that requires us to compare and weigh the probative value and effect of the testimony of such respective witnesses. The point is such testimony was wholly irrelevant and incompetent, and was improperly put before the jury, and could not properly be considered by them for any purpose. Except as we look at the verdict as rendered, I do not see how it can be asserted in what way the jury considered or regarded such evidence. They were the exclusive judges of the facts and the weight to be given the testimony. As bearing on the issue of the disputed terms of the contract in question, they may have regarded the testimony of the three witnesses that they sold their peaches for 75 cents a bushel as of greater probative value or weight, and hence were thereby influenced in finding that, since the plaintiff purchased peaches from such witnesses at 75 cents a bushel at the same time and place, it was probable that the plaintiff had agreed to pay the defendant at least that much for his peaches and as was alleged by him. When evidence, as here, is admitted, and which has a direct tendency to do harm and relates to a material and essential issue — the main issue — before it may be said that such error did no substantial harm, it ought to be made to appear either by the verdict as rendered that no harm was done or by the record that the prevailing party was, in substance, entitled to a directed verdict as rendered, notwithstanding such erroneous admission of evidence. On the record no such position can successfully be maintained, for the plaintiff gave evidence to show that the terms of the contract between it and the defendant were that the defendant merely consigned his peaches to it without any guaranty. Thus the defendant, as to such issue, was not entitled to a directed verdict.

Nor can I see that the verdict would have been the same had the objectionable evidence been excluded. To assert- that is, as I think, but conjecture.

I, therefore, am of the opinion that the judgment should be reversed and the cause remanded for a new trial.