Wood v. Finson, 91 Me. 280

Wood v. Finson

91 Me. 280 | Me. | 1898

Foster, J.

Assumpsit by the plaintiffs, oil merchants in Boston, to recover of the defendants, traders in Bucksport, the value of twenty barrels of kerosene oil, to be delivered free on board vessel in Boston.

Plaintiffs made the sale through one Emery, a general traveling salesman and agent of theirs. The plaintiffs had previously employed one Carlow as their salesman and agent, who had repeatedly sold the defendants burning oil. Emery succeeded him, and made sale of the oil in suit.

The defense set up that the contract of sale called for insurance of the oil by the plaintiffs, instructions having been given, as the defendants claim, to Carlow always to insure oil shipped to them by vessel, and that from a failure to do so in reference to this order sold by Emery, the defendants lost its value, the oil having been lost at sea.

Numerous exceptions are taken to the admission of certain questions and answers in relation to the authority of the two agents, and instructions received by them from the plaintiffs. Also in relation to sales previously made by Carlow, and whether or not insurance was placed on those.

*284It is claimed that this evidence in relation to other transactions was too remote, irrelevant, and therefore not admissible. We think it was admissible. Oftentimes, when the issue is whether a particular contract was made between the parties, and the evidence is conflicting as to what the contract was, it has been held competent for a defendant to show the value or character of the property which he was to receive as compared with that in the contract claimed by the other side, as tending to show the improbability of the contract being as alleged by the plaintiff. Nickerson v. Gould, 82 Maine, 512; Upton v. Winchester, 106 Mass. 330; Norris v. Spofford, 127 Mass. 85 ; Parker v. Coburn, 10 Allen, 82. So evidence of a person’s poverty and bad credit has been held admissible on the issue of whether goods were sold on the credit of such person or of a third party, as bearing on the improbability of the plaintiff’s making the sale on his credit. Lee v. Wheeler, 11 Gray, 236. So in this case, while the fact of whether there had been insurance effected on previous sales or not, might not be conclusive as to what was done in this particular instance, it was admissible on the question of probability or improbability of the contract being as claimed by plaintiff. It was in accordance with this principle that the court, in Trull v. True, 33 Maine, 367, held that “ testimony cannot be excluded as irrelevant, which would have a tendency, however remote, to establish the probability or improbability of the fact in controversy.” See also Tucker v. Peaslee, 36 N. H. 167, 168; Huntsman v. Nichols, 116 Mass. 521, where it was held that, although the authenticity of the note in suit was the only issue, yet the business transactions between the parties had some bearing upon the probability of the indorsement having actually been made by the defendant, and were therefore admissible in evidence.

One of the principal points of contention by the defense was that there was a contract or understanding that all goods shipped by vessel by the plaintiffs to the defendants should be insured. The exceptions in part relate to the admission of evidence bearing upon the authority of the agents, and instructions to them from the plaintiffs.

*285But even if the defendants’ objections were tenable, the special findings of the jury have rendered them unavailing. The jury, upon special findings, have decided that there was no understanding between the parties that goods shipped by vessel to the defendants should be insured for the benefit of the defendants. If there was no such understanding, then, whether the plaintiffs did or did not give authority to their agents to enter into any such contract, is of no consequence. The charge of the presiding judge was that if there was any such understanding,—“ if the plaintiffs should have insured, and the compensation for the property was thereby lost, the plaintiffs cannot recover.”

And so far as the exceptions relate to the inadmissibility of any evidence coming from the plaintiffs as to Emery’s having no authority to cancel the plaintiffs’ claim for the lost goods in consideration of the defendants’ continuing to purchase goods of the plaintiffs, the special finding of the jury has settled all objections upon that point, inasmuch as they have said that there was no such agreement. Hence authority, or lack of authority, became immaterial.

Therefore the exceptions cannot be sustained, because to be sustained it must be shown affirmatively that the excepting party has been aggrieved by the ruling complained of. Bryant v. Knox & Lincoln R. R. Co., 61 Maine, 300 ; State v. Pike, 65 Maine, 111; Soule v. Winslow, 66 Maine, 447.

Exceptions and motion overruled.