Thayer Export Lumber Co. v. Naylor

| Miss. | Oct 15, 1911

Whitfield, C.

The action of the court in refusing to permit the appellant to present its version of what was intended by the letter and check of May 22, 1907, after having permitted the appellee to present his version of .same, is reversible error. If no parol testimony was admissible, it was error to have heard the plaintiff’s testimony on this subject. But if, looking at the letter and the statement of account and the check with the words “Bal. a|c to date,” it could be fairly said that the expression was left in doubt as to its true meaning, then, surely, if the plaintiff was permitted to testify as to what it meant, so should the defendant have been. In section 15, vol. 1, of Wigmore on Evidence, it is said: “Prior introduction of inadmissible evidence estops the party offering it from objecting to the admission of similar evidence on the part of his opponent.” Either the court should have shut out all evidence, or permitted both parties to testify as to what the phrase “Bal. a|c to date” meant. This letter and check were dated May 22, 1907, and this suit was not instituted for nearly two years thereafter, April 15, 1909.

We think, also, that instruction No. 2 given for the plaintiff is fatally erroneous. There was a dispute in the testimony as to what the state of the market for Bio deals was between the date of the breach of the contract, if it was breached, March, and September, 1907. The plaintiff testified that the price obtaining during that time was much lower than the contract price. The defendant’s evidence, by a number of other lumber merchants, was to the direct contrary. The preponderance of the testimony was with the defendant on this point, and yet the charge omits to' state the vital point — that it was the duty of the plaintiff to show that he sold the lumber within a reasonable time after the breach of the contract at the best price obtainable in the market at Gulf-port, after the breach of the contract and before the sale. The instruction as written left the jury to find for the plaintiff if they were satisfied that the plaintiff eventually had to sell the lumber at a less price than that stipulated in the contract, although he conld have sold at a price equal to or greater than the contract price at some period between the breach and the sale.

Reversed and remanded.

Per curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded.

Suggestion of error filed and overruled.