Gardner v. Clark

17 Barb. 538, 1854 N.Y. App. Div. LEXIS 19

Opinion

By the Court, Bacon, J.

The action was brought by the plaintiffs to recover damages alleged to have been sustained by the non-delivery of grain, upon a contract entered into in May, 1846, and subsequently modified by parol, as alleged, between Adison Gardner and the defendant. The grain was to be delivered in the fall of 1846 and 1847. The cause of action was assigned by Adison Gardner to Nathan F. Graves, by order of *Judge Nye, in the course of a proceeding instituted against him under the non-imprisonment act of 1831. Graves subsequently Sold and assigned the demand in question to the plaintiffs in this suit. The answer denies the contract, in part, and sets up the non-performance of a condition precedent on the part of Gardner, to wit, a refusal to pay for the grain as delivered, by which it is claimed the defendant was discharged from its obligation. There are other denials and issues tendered and taken between "th'e parties, but it is not material to consider them in disposing of the "case as now presented to the court.

On the trial Adison Gardner was sworn as a witness on the part of the plaintiffs, and examined at great length in regard to-the contract and the alleged modification- thereof; the non-performance thereof by the defendant; the amount of grain delivered ; when and where the delivery was to bé made; the payments made to the defendant; and generally upon about all that the plaintiffs were required to prove to make out their case. On the part of the defendant, after the testimony of one witness had been given, the defendant offered himself as a witness, and the plaintiffs objected to his being sworn, on the ground "that as the assignment by Gardner to Graves was the result of a compulsory proceeding against Gardner, the code did not allow the defendant to offer himself as a witness in such a case. The code provides (§ 390) that when an assignee of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter, on his own behalf, and shall be so received. The answer to the plaintiff’s objection is twofold.

(1.) The provision of the code is general, allowing the party to be examined whenever the assignor has been introduced and has given testimony for the adverse party. We can perceive no reason for restricting it to the case of a voluntary assignor. The object of the code was to allow the largest latitude to the introduction of evidence, and to permit opposing parties to be confronted with each other in order that the jury may have the benefit of all that can be said by parties cognizant of the transaction ; leaving it to them to weigh, reconcile or discredit the tes-* timony in their discretion. An involuntary assignor is as much an assignor, as one who of his own motion qualifies himself to be a witness by making a voluntary assignment. But,

(2.-) We do not think Gardner was an involuntary assignor; He was proceeded against under the non-imprisonment act, but when brought before the officer who granted the order for his arrest, he was under no necessity of making the assignment; He had some four or five alternatives presented to him to avoid a • commitment under, the provisions of that act, either of which he was at liberty to embrace. He chose to deliver an inventory of his estate and execute an assignment of his property under the 3d subdivision of the 10th section of the act. This he was at liberty to do or to decline, and pursue some one or other of the different modes presented for his choice. In this he was a voluntary actor, and the assignment can in no just sense, therefore, be deemed a compulsory act. The objection was properly overruled, and the defendant sworn as a witness in the cause.

In a subsequent stage of his testimony, the defendant was inquired of as to an interview had by him with Dunham on the subject of the delivery and payment for the grain, and his readiness to deliver the balance. This testimony was objected to by the plaintiffs’ counsel, on the ground that it did not call for testimony upon the same matter as to which Gardner had been examined. How it is true that Gardner had not been examined as to the particulars of any interview of the defendant with Dun-ham, for Gardner was not present at any such interview- But he had testified that Dunham’s storehouse was the place where the grain was to be delivered, and that Dunham was his agent to receive and pay for the same, he having supplied him with funds for that purpose; and these were very material inquiries to determine the defendant’s liability, or his exemption from further obligation on bis contract. The code does not limit the defendant’s examination to the same identical .points ás to which the assignor had been inquired of, but he may offer himself as a witness “ to the same matter;” Suppose, for illustration, that an assignor had sworn that on a certain occasion he advanced á large sum of money to a defendant, for which he was bound to account, and the inquiry had there stopped. Can it be doubted that a defendant could be called to testify that at a subsequent period he had repaid that money to the assignor, or had expended it in some mode authorized by and for the benefit of the assignor? By the testimony of the assignor he was charged with a liability, which by showing another state of facts not called out, nor alluded to on the examination of the assignor, he was enabled to discharge. This may not be an examination oh the same point to which the testimony of thb assignor had been restricted, but it surely is to the same matter, and is fully authorized by this provision of the code. The ruling of the judge, therefore, in admitting this testimony, was correct, and the objection was properly overruled.

After the testimony on both sides was closed, the counsel for the plaintiffs submitted to the court several propositions in writing, in accordance with which he requested the judge to charge the jury. These propositions, being six in number, are set forth in the case, as well as the several refusals of the respective charges given thereupon by the court. In respect to the sixth proposition, the court did charge as the plaintiffs’ Counsel requested. In respect to four of them; but little serious complaint was made by the counsel, on the argument. We have examined the several refusals and the charges of the judge in regard to the 2d, 3d, 4th and 5th propositions propounded by the plaintiffs’ counsel, and we think they are all warranted by the case as it appeared in evidence; that each and all of them were quite as favorable to the plaintiffs as they had a right to ask; and that no injustice was done by these several rulings.

In respect to the first proposition, the refusal of the Judge to charge in accordance therewith, and the charge actually given by .him, a more serious question arises. To understand the proposition, it must be borne in mind that the original contract between Gardner and the defendant was in writing, and is set forth in the complaint at fol. 304, precisely as it was afterwards proved on the trial. But this contract, it was claimed by the plaintiffs and not denied by the defendant, was subsequently modified by parol between Gardner and the defendant, although they greatly differed in tlieir testimony as to the terms of the modification, and the great point of the case was to ascertain how far, if at all, that contract was modified on the subject of the right of the defendant to be paid for his barley as delivered. Upon this question, his liability under the contract, or his discharge from its obligations, turned. The plaintiffs’ counsel asked the court to charge that “the defendant, upon the contract as proved by Gardner, was not entitled to any pay for the barley until the whole which he had contracted to sell had been delivered,” Now the court was entirely right in refusing to charge in the language of this proposition, for the plain reason that the testimony of Gardner, standing alone, did not prove, nor conduce to prove, any such contract as was claimed. To arrive at any just conclusion on this point, it was absolutely necessary to go back to the original contract; and it was only by taking that, in connection with Gardner’s testimony, that the court or the jury could come to any judgment as to what in this respect the real contract between the parties was. It is well settled that a request to the judge to instruct the jury must rest upon undisputed facts or a hypothetical casé. If the proposition submitted is incorrect, either in fact or law,, the judge may refuse to give the instruction. (5 Denio., 595. See also Lyon v. Marshall, 11 Barb. S. C Rep. 241.)

The judge was right, therefore, in refusing to give the instruction requested; but the refusal was accompanied by a charge, that the main question in the case was, whether Gard ner had complied with the contract on his part, and hence it became material to inquire whether, according to the terms of the modified contract, the barley was to be paid for as each load was delivered, or whether it was not to be paid for until the delivery of the whole. That this question of the construction of the contract was a question for the jury to decide, and therefore the court submitted the question upon the construction of the modified contract to the decision of the jury. To all this the plaintiffs’ counsel excepted, and insists that the submission of the question was entirely erroneous. As a general rule, the proposition of the plaintiffs’ counsel, that the construction of a contract is a matter to be determined by the court, and not by the jury, will not be disputed. But this, nevertheless, is to be taken with the qualification that the entire contract is'in writing, needing nothing but an interpretation of its language by its own intrinsic light, or that, being by parol, there is no contrariety or antagonism in the evidence by which the contract is sought to be established. Well settled as the rule we have alluded to is, we suppose it to be equally well established upon authority, that, although it is generally the province of the court to construe contracts, yet, when the meaning is to be judged of by facts aliunde, in connection with the written language, very much must be left to the jury. This proposition is stated in these precise terms in Cowen & Hill’s Notes to Phil. Evidence, 4th part, p. 1420. In such cases, say the court, in 8 Conn. R. 127, the construction is usually matter of fact for the jury. And per Gibson, J. (1 Penn. Rep. 886,) “ an admixture of parol with written evidence draws the whole to the jury.” (See also Etting v. Bank of U. S, 11 Wheat. 59.)

Such was emphatically the case here. Without the aid of the written contract the testimony of Gardner was unintelligible; and how far that was modified was the point to be gathered from the parol evidence. The language of the judge is doubtless liable to some criticism, and the proposition was not put forth quite as clearly, nor indeed as broadly, as it should have been; but it was substantially correct, and in accordance with a well settled legal 'principle. Indeed, it was more favorable to the plaintiffs than they could justly have claimed. The testimony of Gardner was directly contradicted by that of the defendant, on the subject of the modified contract, and if the judge had left it to the jury upon the whole evidence, as he fairly might have done, the result arrived at by the jury would, in all probability, have been more speedily and certainly attained. It seems to us very clear, that even if the jury were, by the language of this charge, somewhat misdirected, the plaintiffs have sustained no injury by such misdirection; and, in such case, a new trial will be denied. (Mansfield v. Wheeler, 23 Wend. 79.)

[Oswego General Term, April 2, 1854.

Hubbard, Pratt and Bacon, Justices.]

We are satisfied that the ends of justice have been substantially attained in this case, and a new trial is accordingly denied,