56 Fla. 708 | Fla. | 1908
(After stating the facts.) — The plaintiff J. D. Stringfellow, testified as-a witness in his own behalf. His counsel asked him this question: “Mr. Stringfellow, did you make any purchase about the first of January, 1905, from the defendant corporation?” The witness answered: “I gave an order, * * * I met Mr. McDowell, of the Vaughn Seed Store, -- — ” To this answer the defendant objected and moved to strike the same, because the answer assumed that W. S. McDowell was the agent of the Vaughn Seed Store, while the fact of such agency was put in issue by ithe pleadings. The objection was overruled and the motion denied. This ruling is-made the basis of the first assignment of error.
The court committed no error in this ruling. The answer of the witness did not assume or disclose the agency of McDowell. As we read this answer, it was merely introductory to the subsequent statement, by the witness, of the facts and circumstances of the agency of McDowell and the means and source of knowledge of the witness. Hoadley v. Hammon, 63 Iowa 599, 19 N. W. Rep. 794; Talladega Ins. Co. v. Peacock, Adm’r, 67 Ala. 253. Any possible error was rendered harmless by the subsequent testimony of L. W. Wheeler, manager of the New York office of the Vaughn Seed Store, who testified in behalf of the defendant that “during the year 1904, we made arrangements with Mr. McDowell to sell seed for us on commissions. * * * M¡r. McDowell took an order from- J. D. Stringfellow, the plaintiff in this suit, upon the Vaughn Seed Store.” McCallum v. Driggs, 35 Fla. 277, 17 South. Rep. 407.
The witness Stringfellow testified that he gave McDowell “an order for these seed on the 26th day of September, 1904, to be shipped on January 1st, 1905. I purchased fifty pounds of seed.” The witness was asked,
The declaration alleged that the plaintiff purchased from the defendant, and the defendant sold and delivered to the plaintiff, Arlington White Spine Cucumber seed. But counsel argue “that the kind of seed he got was admitted, and that it was immaterial and should not have been testified to.” Testimony tending to prove allegations of the declaration is not immaterial. Even though the declaration admits tire contention of the defendant that the plaintiff bought and the defendant delivered Arlington White Spine Cucumber Seed, we fail to see how the defendant was harmed by proof of allegations of the declaration in harmony with the contention made by defendant. This assignment is without merit.
■Counsel for plaintiff asked the witness Stringfellow the following question: “Did these cucumber vines resulting from the planting of these particular seed produce the Arlington White Spine Cucumbers?” The witness answered: “They did not produce any Arlington White Spine cucumbers at all.” The defendant objected to the question and moved to strike the answer thereto' on the ground that the plaintiff admits- in his declaration that he purchased Arlington White Spine cucumber seed and received the same, and as being’ irrelevant and immaterial. The court overruled the objection and denied the motion to strike, and this made the basis of the third assignment of error.
This assignment is without merit. The testimony was proper. It tended to prove the plaintiff’s case. The dec
In support of his case it was proper for the plaintiff to prove, if he could d’o so, that the Arlington White Spine cucumber seeds bought by him did not produce the Arlington White Spine cucumber. The other db
The 5th, 6th, 7th, 8th, 52nd, 53rd, 54th and that part of the 56th assignment based upon the refusal of the court to give the 25th instruction requested by the defendant ma)'- be considered together. They all relate to the measure of damage. The plaintiff, Stringfellow, and his witnesses Beville and Tenley were permitted to state the cost of the seed, the expense incurred by the plaintiff in planting, cultivating and irrigating the crop. The defendant objected to this proof, contending that the measure of damage should have been the difference between the value of the crop that would have been raised had the seed been as represented, and the value of tire crop which was actually raised.. The theory of the plaintiff is that the measure of his damage is the purchase money of the seed with interest arid the expense incurred in preparing the land, in planting the seed and compensation for any other expenditures for labor necessary in irrigating and making the crop of cucumbers.
'As will be seen by looking- at the declaration, the plaintiff complained because the seed purchased by him did not yield and produce the kind of cucumbers as represented and guaranteed by the defendant, but, on the contrary it is alleged, the seed produced a kind and quality of cucumber that was absolutely worthless and would not sell in the market. “And the plaintiff, before and since that time, incurred large expíense and damage in the purchase of said seed, in the clearing of the land,
It may be stated as a general rule that the party is entitled to compensation for an injury to his person, in his property or in his reputation. There is another general rule, that a person is not liable in damages for the remote consequences of his act or conjectual consequences. Damages to be recovered must be both the natural and proximate consequence of the wrong complained of. The wrong doer must answer in damages for those results injurious to other parties, which are presumed to have been within his contemplation when the wrong was done.
The defendants engagement was that the seed sold was the Arlington White Spine cucumber seed and would produce Arlington White Spine cucumbers. The natural consequence of a breach of such a warranty would be a crop of cucumbers different in kind and quality from that guaranteed by the defendant. Where, then, the seed produces a crop not harmful fi> the land, but of a poorer character, or of an inferior quality, and less value than would have been produced had the warranty been fulfilled, the measure of damage is the value of the crop of the true product such as the seed was warranted to produce and such as would ordinarily have been produced that year, less the expense of raising it and less also' the value of the crop actually raised from the seed sold; or, in other words, the measure of damage would be the difference between the market value of the crop raised and the crop from the seed ordered. 30 Am. & Eng. Ency.
Where a crop-, though of inferior quality is raised from the seed, the means would be furnished' to enable the jury to make a proper estimate of the injury resulting from the loss of profits of this character, and prospective profits are allowed.
Where the seed bought prove to- be worthless, however, that is where they wholly fail to- germinate or grow after having been planted, and no crop results from the wrong seeds, the evidence of the probable produce of the right seeds in the land and the year in question would be lacking; and the rule that the plaintiff must establish the quantum- of -his loss, by evidence from which the jury will be able to estimate the extent of his injury, will exclude all such elements of injury as are incapable of be-^ ing ascertained by the usual rules of evidence to a reasonable degree of certainty. In such a case, therefore, the* only damages recoverable are the price paid for the seed, the expenses in preparing the soil for the seed and for planting the same, together with the loss sustained from having his' land lie idle for the year, or for such time as the use of it was lost. 30 Am. & Eng. Ency. Law (2nd ed.) 219; Shaw v. Smith, 45 Kan. 334, 25 Pac. Rep. 886, 11 L. R. A. 681; Butler v. Moore, 68 Ga. 780; Reiger v. Worth, 127 N. C. 230, 37 S. E. Rep. 217, 52 L. R. A. 362, 80 Am. St. Rep. 798.
The instant case as made by the pleadings and the proof, falls within the first class of cases, where the seed received from the defendant produced a, crop of cucumbers, but a crop of an inferior quality and’ of less value than would have been produced had the warranty been
The ninth assignment predicates error upon the court’s sustaining plaintiff’s objection to the following question propounded by defendant to the witness Stringfellow: “Who is the man who opens your seed for you?” The objection was “because the question should be confined to who opened this particular sack of seed.” The witness answered: “Different ones.” Plaintiff objected to the answer and the court sustained the objection; but the court did not strike the answer or withdraw the same from the jury’s consideration. ' On the contrary the witness continued to -testify: “I don’t know who opened this particular sack, except from information.” The defendant had the benefit of this testimony, and the last
The tenth and eleventh assignments predicate error ■upon the. court’s sustaining plaintiff’s objection to the following questions propounded by defendant to the witness Stringfellow: “Did you ever see one of Peter Henderson’s catalogues?” “When you went in Peter Henderson’s store did you see that big- sign about non-warranty ?”
The court ruled correctly in sustaining objections to these questions. They were not in cross of the examination in chief. The witness was the plaintiff in the case. On his direct examination he had not been asked anything about Henderson’s catalogue or about his store or the question of warranty. The defendant did not make the witness his own witness.
It is contended that these questions were asked to prove the plea that the seed in question were sold subject to the custom of seed 'merchants in New York. There was no preliminary proof that Henderson was a seed merchant in New York, though it seems to. have been assumed.
The twelfth assignment of error is based on the refusal of the court to sustain defendant’s objection to the following question propounded to the witness Stringfellow : “You stated in your cross examination that you replanted other cucumber seed in the rows between these Vaughn seed — now state to. the court and jury whether or not those other seed produced cucumbers of a marketable character.” The defendant objected to -the question “because it was irrelevant and immaterial, and has nothing to do with this case.” These objections are too general and they were properly overruled. Besides this, the tes
The thirteenth, fourteenth and fifteenth assignments may fee considered together. At the conclusion of a part of the testimony given on the re-direct examination set forth in narrative form, the transcript shows: “Defendant objected to' testimony, and defendant’s counsel moved to strike out the testimony preceding, because it is irrelevant and immaterial and has nothing- to do with the case. The objection was overruled, motion denied. Defendant excepted.” These objections were too general and were properly overruled. Besides, the “preceding testimony” was but a repetition of testimony that had 'been brought out by the defendant on the re-cross examination of the witness. In this testimony the plaintiff who was testifying explained that 'he planted twenty-five and one-half acres in cucumber seed bought from the defendant, the Vaughn Seed Store. Some of the seed did not come up, and plaintiff had' to replant. The plaintiff did not have enough of the seed he got from Vaughn to finish replanting the whole field. There were about six acres where he 'had about half of a stand. So 'the plaintiff bought out seed from: Thomas to finish the replanting. About three acres were replanted with the Thomas seed. The Thomas seed produced good marketable cucumbers, so the plaintiff made out his bill or claim for damages against the defendant for planting-, cultivation, fertilizing and irrigating twenty-two and one-half acres. This testimony was in explanation and proof of the items in plaintiff’s bill of particulars.
The defendant asked the plaintiff: “How much did
The sixteenth assignment of error is based upon the court’s overruling defendant’s objection to the following question propounded to the witness W. A. Strickland: “They were not marketable, salable cucumbers?” The question was objected to as being- immaterial and irrelevant to the issues in the case. The only argument made by plaintiff in error in support of this assignment is the statement: “We will endeavor to show in subsequent assignments that whether or not these were marketable, salable cucumbers was not in issue, and that this evidence simply' tended to confuse the jury and prejudice the defendant.” We accept the invitation to consider tire question sought to be raised here when we come to consider other assignments, pointing- out, as we go, that this question was a leading question.
The seventeenth assignment of error is dismissed by counsel for plaintiff in error with the statement that “the argument of the preceding assignment applies to
The eighteenth assignment is based upon the court’s sustaining an objection by plaintiff to the following question propounded by defendant to the witness W. S. McDowell: “Did you know at the time you got those seed the usual conditions, under which seed are sold?” The objection was properly sustained because it was not in cross of the direct examination. The witness was not examined in chief on his knowledge of the conditions under which the seed were sold. The defendant could have made Mr. McDowell his witness, for the purpose desired, but he did not do so.
The nineteenth .assignment is based upon the court’s sustaining plaintiff’s objection to the following- question propounded to the witness E. M. Bev-ille: “Isn’t there a paper usually in the top of the bag like that ?” There was no error in this ruling. The witness stated that he opened the bag of seed and there was no such paper as a ■disclaimer.
The twentieth assignment of error predicates error upon the court’s sustaining plaintiff’s objection to. the following question propounded to the witness E. M. Beville: “What is the effect of such?” This question had reference to the preceding- statement of the witness that he knew the effect of excessive use of water on a crop. The witness had testified that he “was foreman out there (for Stringfellow, the plaintiff), and had complete control of the management of the farm; and attended to the irrigation of the farm. There was. no error here. The question was not in cross examination of anything said by the witness in chief.
The twenty-first assignment of error is predicated upon
The twenty-second assignment is based upon the court’s sustaining plaintiff’s objections to tire 7th, 8th, 12th, 14th,- 21 st, 23rd and 28th questions and answers in the deposition of John Charles Vaughn, a witness for the-defendant.
Different errors in regard to the admission or exclusion of evidence should not be joined in one assignment,, for -if any of the rulings complained of are correct the assignment must be overruled. 2 Cyc. 986, 991; Daniel & Finley v. Seigel-Cooper Co., 54 Fla. 265, 44 South. Rep. 949. The 21st question to Vaughn is the same as-the 6th. question propounded to the witness Robinson,
The twenty-third assignment is based upon the court’s exclusion of the twenty-fourth and' twenty-sixth- interrogatories to the defendant’s witness Edward Hallberg upon objection by the plaintiff. There was no error. The court properly excluded the questions and answers of the witness Hallberg because they brought out hearsay evidence in the form of letters from two parties that certain orders filled by the defendant produced satisfactory results.
■The twenty-fourth assignment of error: L. W. Wheeler, a witness for the defendant, testified that he was the manager of the New York office of the Vaughn Seed Store, and had been such manager for seven years, his business is a seedsman. — “At the time that the order from Mr. Stringfellow was filled, we didn’t -have fifty pounds of any other kind of seed in the house. I know that we did not have fifty pounds of any other kind of cucumber seed in ‘the house from our stock book the original of which I have in my possession. The copy I have 'here 'is a copy of the original book made by myself.’' Thereupon, defendant offered in evidence a “drawn off statement from the stock book,” to^ which plaintiff objected, “because it is wholly irrelevant and immaterial— the original is the best evidence.” The objection was sustained, and this ruling- is made the basis of the twenty-fourth assignment of error. There was no error here, because the statement made from the stock book by the witness and offered in evidence was not the best evidence, the witness having- the original stock book in his possession, and because every fact which he wished to prove by said statement had been already testified to by the witness
The twenty-fifth assignment of error is, “The court erred in refusing to allow the defendant to file in evidence two original orders of W. S.- McDowell for cucumber seed to be shipped to J. D. Sitringfellow and a part of the C. O. D. envelope accompanying said shipments.”
The contention of the plaintiff in error is that these orders should have been allowed as tending to show that the plaintiff had knowledge of the existence of the disclaimer of warranty. The papers offered do not show any such disclaimer, consequently there was no error here. What is said here disposes of the twenty-sixth assignment also.
The twenty-seventh assignment is: “The court erred in sustaining plaintiff’s objection to the introduction in evidence of the duplicate letter dated July 25, 1904, to W. S. McDowell, which letter was signed by McDowell for the purpose of showing the scope of his employment and the extent of his authority as the agent of the defendant in refusing to allow the same to be filed and read in evidence.” No prejudicial error has been made ho appear in excluding this letter defining the authority of Mr. McDowell because there is nothing in this letter which bears upon any issue in this case, even if Mr. String-fellow had seen it and knew all about it. There is no qiiestion in this case about the prorata or full delivery of seed which were ordered in this case by McDowell, and the letter deals only with the question of Mr. MicDowell’s power to promise full or pro rata delivery of seed ordered by him for his customers.
The twenty-eighth assignment of error is based upon the court’s refusal to permit the witness Hill to answer the following question: “What effect has blight had on
The twenty-ninth assignment is based upon the refusal of the court to permit Mr. Jarvis to answer the following question: “On what class of land is blight more liable to come than on other kinds?” The relevancy of tin’s question was not apparent and there was no offer made by the defendant to make such relevancy appear or to connect anything the witness might say with the lands of M.r. Stringfellow.
The thirtieth assignment is based upon the refusal of the court to allow the witness McDowell to answer the following question: “During the Spring of 1905, can you'name some parties who had satisfactory results from cucumber seeds which were purchased from Vaughn of the variety known as Arlington White Spine which you saw yourself?” Though the court did not permit thiá question, it was subsequently fully answered by the witness, he giving the names of several parties to whom he had sold said seed where the results were satisfactory and the fruit produced was good, but he gave two instances in which the results were not good.
The thirty-first assignment has been disposed of by what we have said about the twenty-eighth assignment of error.
The thirty-second assignment predicates error upon the court’s sustaining objections to the 10th, nth, 12th, 13th, 14th, 15th and 16th questions and answers in the deposition of one CaiJ Crop. • These objections are all grouped in one assignment, and the 10th question propounded to Carl Crop is: “State whether Vaughn Seed Store made trials of certain cucumber seed at their trial
The thirty-third assignment is- based upon the court’s ’ sustaining plaintiffs objection to the seventeenth interrogatory and answer contained in the deposition of Carl Crop. The ’ question propounded to the witness- is as follows: “If you have stated in your answers- to the foregoing questions that you are a seedman and have been in the business for some time and acquainted with the said business and the conditions under which it is operated, state if you know-what the custom of seed merchants in reference to the sale of seed under a warranty or disclaimer and give the source of your knowledge, and state whether any seed merchants to your knowledge sell seeds other than on the usual conditions. Also state what are the usual conditions.” This question and the answer thereto- was not limited to the proof of the custom of seed merchants in the city and State of New Yode as alleged in the plea, but - undertook to prove tire custom of seed merchants generally, and of such a custom there had been no proof and there was no tender of proof that the plaintiff had knowledge of any such custom.
The thirty-fourth assignment has been disposed of by what has bear said in the thirty-second assignment.
The thirty-fifth assignment is based upon the court’s sustaining plaintiff’s objection to -the 6th, 9th, 10th and
The thirty-sixth assignment charges that the court erred in sustaining plaintiff’s objection to. the defendant placing in evidence that part of the catalogue gotten out by Vaughn Seed Store for 1905, containing the non-warranty or disclaimer. The transcript of the record before us does not sustain this assignment. ~ The catalogue offered in evidence was. for the year 1906, and there was no proof or offer to prove that the catalogue for 1906 contained the non-warranty or disclaimer similar to that contained in previous catalogues.
The thirty-seventh .assignment raises a question similar to the one presented by the 36th assignment, and what we have said disposes of it.
The thirty-eighth assignment is predicated upon the court’s overruling defendant’s objection to. the following question propounded to the plaintiff Stringfellow when testifying in rebuttal: “Was Mr. McDowell ever employed by you as your agent to purchase seed for you ?” The ruling of the court was correct. The question called for testimony as to. a fact, and not the conclusion of the witness. See Edwards v. Law, 46 Fla.
The fortieth assignment of error is based upon the court’s overruling defendant’s objection to the following question propounded to the plaintiff: “State whether or not you properly planted in the ordinary and usual manner of planting seed in Alachua county, the seed purchased from this defendant company in 1905, and about which this controversy has arisen.” This assignment is wholly without merit and illustrates the character of so many of the objections made during the trial of this case. The defendant objected to this question on the ground that this witness was not competent to answer this question “because in his direct testimony he stated he didn’t know whether they were planted or not.” On page 43 of the transcript, we find this witness testified, on his direct examination, as follows: “I probably used more care and caution in the planting of these cucumbers than I did any others, because I made a specialty of cucumbers that year. I planted and replanted; irrigated and fertilized them, and did everything that a reasonable man could do to make a first class crop.”
The further objection was made tO’ this question because it called for the opinion of the witness -and the facts should be given. In answering this question the witness stated in great detail the facts showing how the land was prepared, fertilized and the se,e$i planted, and concluded by saying this was the usual and customary manner of planting such seed. There was no error in this ruling. 5 Ency. of Ev. 553.
The forty-first assignment is based upon the court’s
There is as little merit in tire forty-second assignment as in the preceding ones, but if we merely copy each assignment this opinion will run to great length.. We could write at great length in an effort to show what little merit there is in many of the objections made by the defendant. Many of these assignments present questions that have been ruled On time and again by this court. It will be of no benefit to the members of the bar to burden the pages of our reports with a discussion of many of the questions found in this case. We will content ourselves with discussing the most important questions to be decided. We have given most patient examination to each and every assignment and find no reversible error herein.
The forty-third assignment is covered by what we have said about the fortieth assignment.
The forty-fourth, forty-fifth, forty-sixth, forty-seventh, forty-eighth, forty-ninth, fiftieth and fifty-first assignments are without merit. They relate to objections made by the defendant to the admissibility of testimony, and much we have already said will apply here also.
The fifty-fifth assignment of error is based on the giving of the first and second instructions' requested by the plaintiff. We find no error in the first instruction, and therefore 'this assignment fails.
. The fifty-sixth assignment of error embraces the refusal of the court to give fourteen instructions requested by the defendant. The court properly refused to give the first of these, which is the fifth because it was in
The fifty-seventh and fifty-eighth assignments of error are based upon the overruling of the motion for new trial and that 'the verdict is not supported by the evidence. -We have carefully read and considered the evidence and think the same is sufficient to support -the verdict.
The judgment is affirmed.
