4 Fla. 102 | Fla. | 1851
delivered the opinion of the Court.
Several grounds of error are assigned upon the transcript of the record of the proceedings and judgment in this cause, which will be noticed in their order.
1. The first error assigned is upon the admission of the affidavit of the respondent, to prove the loss and destruction of certain original letters of Porter, the testator of appellant, so as to let in secondary evidence thereof. This point was very properly surrendered and abandoned by the counsel for appellant on the argument here. The affidavit of a party, as to the loss of a deed, document, or other writing, after evidence of the existence thereof by other testimony, is clearly admissible. 1st Greenleaf on Evidence, §§ 349, 558, and ailthorities cited in the margin.
2. The second error assigned is founded upon the exception taken at the trial to the introduction of the letters-of respondent to Porter, which were produced by the appellant under a rule, and offered in evidence by the respondent. These letters appear to have been written at the opening, and during the continuance of the correspondence between the parties as principal and factor, and which seem to have accompanied the respective consignments of the goods as
3. The third assignment of error is upon the exception taken at the trial to allow a question to be put to the witness, John W. Porter. This witness was introduced for the purpose of impeaching the credit of Thomas J. Ferguson, the witness for the plaintiff below; and the question propounded was, “ Have you the means of knowing the general character of Thomas J. Ferguson, and if yea, from such knowledge, would you believe him upon oath ?” The question being objected to by plaintiff’s counsel, was ruled to be improper, and disallowed by the Court.
In the English Courts, the practice is, to propound the question to the impeaching witness, in the precise terms employed in the question asked of the witness here, and involving in its scope the entire moral character of the person in question. See Phillips on Evidence, 292. Mr. Greenleaf,
The declaration is on a special assumpsit, and sets forth a contract or agreement by parol between Ferguson and the appellant’s testator, which is in substance as follows : that Ferguson, who was a manufacturer of arrow root, would, from time to time, send and deliver to the said Porter, as his factor, parcels of the said arrow root, and that Porter should receive and ship the same to the port of New Orleans, and there sell, or cause the same to be sold, for and on account •of Ferguson; that, in pursuance of said agreement, Ferguson, in September, 1846, delivered to Porter seventeen hundred and twenty-five pounds of said arrow root, of the value of $140, and which the said Porter, under the agreement aforesaid, should have shipped to New Orleans, but in violation of his agreement, and against the consent of Ferguson, he shipped the goods to Charleston, whereby the •same were wholly lost.
The plea is non assumpsit. What is the question of fact
At the trial of the cause, the Court, on the prayer of the respondent, instructed the jury as follows, viz : “ If the jury believe, from the testimony, that it was the usage of trade for consignees for shipment at Key West at that time, to insure on goods of others sent to them for shipment, without instructions as to insurance, and shipped by them ; and J. Y. Porter shipped the arrow root in question without insuring it, and it was lost on the voyage at sea, he became liable to pay plaintiff the value of it, and in that case, they ought to find for the plaintiff, &c.” Now, what has this instruction to do with the issue which the jury were sworn to try ? The instruction directs the attention of the jury to a breach of the contract or agreement, when the breach is not put in issue by any plea — a breach, too, which is not alleged in the declaration. The breach alleged is for shipping to Charleston, when he was bound by his undertaking to ship to New Orleans, whereby the goods were lost — the deviation is the gist of the breach; the negligence or omission to effect an insurance on the goods against the perils of the sea, which, by the usage of trade, he should have done, is not charged. Whether the instruction is or is not
The instructions given to the jury in conclusion, it is true, do put the issue made by the pleadings to the jury, but these instructions are also justly obnoxious to the same charge of introducing extraneous matter, for they also put to the jury the question of the breach of the contract, when, in fact, the breach was neither denied, nor confessed and avoided, by plea. As before remarked, the appellant had, in the Court below, put her defence on the simple and isolated ground, that her testator never made any such agreement as that alleged in the declaration. No evidence was pertinent or proper, save what would conduce to prove or disprove this fact, and saving, also, the proof of the value of the goods, as a guide to the jury in the assessment of damages, in case they found the issue for the plaintiff.
It becomes, therefore, very important to inquire, whether the jury were probably misled by the instruction first given, and their attention thereby withdrawn from the consideration of the true, and directed to a false, issue ? It will be seen, from the evidence set forth in the bill of exceptions, that the testimony on the subject of the agreement was very contradictory — the -witness for the plaintiff stating it distinctly and clearly as it was set forth and alleged in the declaration, and the witness for the defendant stating as distinctly and clearly the reverse, by affirmative allegations of other and inconsistent terms and conditions of the agreement in relation to the arrow root. In the absence of the first instruction, we should have presumed that the jury, under the last instruction, had duly exercised their province of weighing the testimony, and had responded to the issue, that there was such contract, agreement and undertaking as
The breach laid in the count not being denied or confessed or avoided by plea, was admitted, and the jury finding the issue upon the agreement for the plaintiff, were authorized to proceed to the assessment of the damages sustained, according to the evidence on that point of the value of the goods. We may remark in this connection, that, although the declaration contains, in addition to the special count before referred to, a count for goods sold, and money had and received ; yet it is not claimed or pretended that any evidence was offered to the jury to authorize a finding upon that count, and for which reason we did not notice it, in adverting to the case made by the declaration.
5. Three instructions were asked for in the Court below by the appellant here, and upon the refusal of the Court to grant the prayer an exception was noted, and this exception forms the fifth assignment bf error. We do not express any opinion upon the principles of law asserted by these instructions, but we say, that, as they relate entirely to the question of the assumed obligation of the factor to procure insurance on the goods, a matter not legally and. properly in controversy in the cause, they were irrelevant,, and for that cause ought not to have been given.
We regret very much indeed, as the amount involved in this controversy is small, that we are compelled to remit the case for a new trial, but believing as we do that the jury were misled by the oral issue made at the trial upon a breach of the contract, not the breach assigned in the declaration and not in any wise in controversy in this suit, we-have but one plain duty before us, which is to order and adjudge that the judgment of the Circuit Court be reversed and set aside, and the cause remanded for a new trial, in accordance with this opinion.