Ives v. . Ellis

62 N.E. 138, 169 N.Y. 85, 7 Bedell 85, 1901 N.Y. LEXIS 783

Opinions

Parker, Ch. J.

That the letter of Mr. F. S. Ellis to Ellis and Elvey, introduced in evidence by the defendants, was hearsay and incompetent, is too clear to admit of debate. But it is urged that this error on the. part of the trial court should not lead to a reversal, because (a) it was so slight an error that it should be overlooked; (b) the court should be deemed to have cured the error by its instructions to the jury; (c) it bore only upon the issue, whether there was a breach of warranty, and as no express warranty was proved no harm could have resulted; (d) if there was evidence tending to prove an express warranty, the verdict, being general in favor of the defendants, imported that no contract of warranty existed, which, being unanimously affirmed, renders immaterial the erroneous rulings relating to evidence bearing only on the question of breach of contract.

A brief examination of the record will show that these excuses for affirming the judgment, notwithstanding the error of the trial court, are not well grounded. The plaintiff’s claim is that on or about the 20th of March, 1890, the defendants, a firm of booksellers doing business in London, sold to him a certain document, purporting to be a copy of a letter in the Spanish language written by Christopher Columbus on his return from his first voyage, announcing his discovery of the new world, addressed to Luis de Sant Angel, which document these sellers represented and expressly warranted to the plaintiff to be a printed copy, typographically produced from movable types, and that believing such representations to. be true, and relying upon such express warranty, the plaintiff purchased such document and paid therefor the sum of nine hundred pounds sterling ; but that such representation or war. ranty was not true,' inasmuch as the document was not a printed copy produced typographically by means of movable types, but had been produced in some other way, so as to con stitute a counterfeit of a printed -book typographically produced-. The defendants denied having made an express warranty concerning the document or the process by which it was produced. Upon this issue evidence was given by both the lilaintiff and the defendants, as well as upon the further issue whether there was a breach of the warranty, if one was made. As to the latter question the plaintiff called several experts, who testified that in their opinion the document was not produced. by typography, while the defendant Ellis and one expert produced by him expressed a contrary opinion. . The defendants offered in evidence a letter, addressed to them by Mr. F. S. Ellis., reading as follows:

“TheRed House, Chelston, Torquay, June 30th, 1891.

“Dear Sirs.—In reply to your inquiry respecting the Columbus letter in Spanish, now (or lately) in the possession of Mr. Brayton Ives, I can only say that after a very careful examination of the document, and after weighing all the arguments that could he adduced on the other side, I came most decidedly to the conclusion that it was a genuine piece of ancient typography belonging to the latter end of the fifteenth century. This was also the opinion of the late Mr. Blades, the author of the Life of Caxton, than whom I believe it would be difficult to name a more competent judge of early printing. Allow me to remark that I looked at the work in question without any bias in favor of its being genuine, and that I never had the smallest pecuniary interest in it in any way.

“ I am, dear sirs, yours faithfully,

“F. S. ELLIS.”

This letter was written more than fifteen months after Mr, Ives had purchased the document of the defendants, and contained, as appears, from its reading, the opinion of Mr. F. S. Ellis that the document was a genuine piece of ancient typography; and it also .purported to contain the opinion of the late Mr. Blades to the same effect, for whom Mr. Ellis vouched as a most competent judge of early printing. The letter was most persuasive with the jury, as to the opinion expressed, because of the testimony of Mr. Ives, already given, to the effect that he had liad extensive dealings with Mr. Ellis and regarded his opinion on that subject highly, and who, desiring to prepare himself against hostile criticism, had written to the defendants asking them if they could procure letters supporting the book from Mr. Major of the British Museum and from Mr. F. S. Ellis. The plaintiff’s counsel, appreciating the injury that would result to his client by the admission of this letter, obtained at a time when he believed the document to be genuine, and for the purpose of supporting the claim of genuineness that he had made when he was about to offer this with other books for sale to the public, promptly objected that the letter was hearsay and incompetent, which objection he supported by argument at length, in the course of which he said : “ My objection to the letter is upon the ground that it is written fifteen months after the transaction in question, and is not germane to the inquiry here as to whether the warranty was given or whether it was broken. The transmission of this letter.to Mr. Ives at Mr. Ives’ request, to be fortified with regard to the truth of the statement which Mr. Gilbert Ellis had made, has nothing to do with the question as to what statement Mr. Gilbert Ellis had made, or whether that statement was true in fact. The real object, I submit, is to get before the jury evidence upon the question of typography without examining the witness.” After further argument the following took place: “ The Court: Mow, let me understand, Mr. Fox, what limitations you admit with reference to the introduction of this letter ? Mr. Fox: Will your Honor pardon me if 1 ask you what limitations you desire to impose upon it ? The Court: That it is not proof of any of the statements therein contained. Mr. Fox: So I admit. The Court: And that it is merely introduced as showing a letter received by the plaintiff in pursuance' of a request made to the defendants by him ? Mr. Fox: Tes. The Court: And that is the only fact established by it ? Mr. Fox: That is it. The Court: Admitted with that limitation. Mr. Hughes : Exception. Offered in evidence and marked exhibit 1 of. this date.” It is difficult to discover any reason for its admission with the limitation imposed by the court and assented to by counsel. But having received it, not as proof of any of the statements therein contained, but merely as showing a letter received, the court nevertheless permitted the defendants, against the objection and exception of plaintifE’s counsel, to read the letter to the jury, saying: “ Any paper that appears in evidence can he read.” It is true that the court said before the letter was read: “ I shall instruct the jury that the letter and statements in the letter do not in any wise prove the statements therein contained or any of them.” But such a statement necessarily could not have had the effect of persuading the- jury that they were not to attach any importance whatever to the opinion expressed in the letter, in the light of the decision of the court that the letter should be read to them notwithstanding the protest of counsel. The jury must necessarily have reached the conclusion that for some reason the court deemed it important that they should be possessed of the opinions of Mr. Ellis and Mr. Blades upon this feature of the controversy. For an appellate court to sustain a ruling admitting incompetent, but, to lay minds, persuasive evidence, because before its reading the court states that the evidence does not in any wise prove the statements therein contained, would not only be unprecedented, but would be mischievous in its tendency, in that it ivould seem to point out a method by which ingenious counsel could get before a jury incompetent evidence without danger of subsequent reversal for the error of admitting it. Mow, this letter was mere hearsay of the most objectionable character, and yet through it the jury, hy permission of the court, had before them a concise and positive statement of Mr. F. S. Ellis that after a careful examination he was most decidedly of the opinion that the work was a genuine piece of ancient typography, and that Mr. Blades agreed with him, and no alleged limitation upon the introduction of the letter. could drive out of their minds the impression necessarily received therefrom.

We now come to the claim that it was subsequently cured by the trial court, which, in the course of its charge, said: “ I desire particularly to caution you to disregard entirely in your deliberations the contents of the letter written by Mr. Ellis to Mr. Ives in response to the latter’s inquiry. ' That letter was admitted solely for the purpose of proving its receipt by Mr. Ives and not to bring before you any of the matters therein contained.” Undoubtedly the court intended to cure the error that it had committed, but the question is, was the error cured ? not, what was the intention of the court. If it had stricken the letter from the evidence and directed the jury to disregard it, or had so accurately described the letter that there could be no mistake in the jurors’ minds but that they were commanded to disregard the opinions of Mr. F. S. Ellis and Mr. Blades, then under the authorities it would be our duty to say that the error ivas in effect cured. (Holmes v. Moffat, 120 N. Y. 159; People v. Schooley, 149 N. Y. 99.) In the latter case the court first struck the evidence from the record and then directed the jury to disregard it, while in the former the court said : “ I withdraw it from your consideration, as I do not believe it to be proper or material evidence. * * * I do not think my attention was directed to it with that degree of care that it should have been; and, therefore, it got in. I think it my duty to say to you that that particular portion of the answer * * * is not before you as evidence at all.” But before an appellate court will hold that such an error has been cured, it must feel sure that the effort of the trial court to correct the error was necessarily effective with the minds of the jury. Mow, that cannot be said- of the caution of the court in this instance, for it must be borne in mind that this letter was introduced in the early part of the trial, which was not only a long one, but in its progress there was an adjournment for a period of ten days, during which the jurors presumably had their minds occupied with affairs of their ownand in view of that situation it was necessary that the court should so accurately describe the letter which it wished them to disregard as to make it apparent that there could be no confusion in their minds as to what letter was referred to. How the letter in question was not written by Mr. Ellis to Mr. Ives, as the instructions to the jury assume, but instead was written by Mr. F. S. Ellis to Messrs. Ellis and Elvey, these defendants, and by them subsequently sent to the plaintiff. And inasmuch as the fact of correspondence between Ives and Ellis and Elvey was frequently referred to during the progress of the trial, it is not unlikely that they may have been in doubt whether the letter referred to in the charge was the letter which was the occasion of considerable controversy many days before. But whatever the fact may be, the court should not declare an error committed under such circumstances as those disclosed by this record, cured, unless the directions of the court to disregard the particular letter applies to it in explicit terms, which was not done in this case, for the jury was not told to disregard the letter written by Mr. F.' S. Ellis to Ellis and Elvey. Indeed, the method adopted in this case of saying that the jury should not regard the letter as proof of any fact, and in the next breath commanding that it should be read to them, probably put it beyond the power of the court to do away with the mischief accomplished, except by frankly admitting t-o the jury that the court had erred in directing it to be read in their hearing and at the same time instructing them to disregard it. For without such an admission on the part of the court the jury would likely reason that as they were told not to consider it before it was read to them, so was it necessary to tell them to disregard it before they were expected to consider it in order to satisfy some unreasonable and technical rule of law that would hide some of the truth from the jurors but for the adroitness of the trial judge.

The further claim that this error should be disregarded because the evidence adduced on the part of the plaintiff did not establish an express warranty and, hence, it is immaterial whether there was error committed in the admission of the testimony bearing upon a breach thereof, need not be considered, because the defendants did not move at the close of the trial for a dismissal of the complaint, whereby they in legal effect consented to the submission of the question to the jury whether there was an express warranty, and thereafter it was not and is not now proper for the defendants to claim that they were entitled to judgment as matter of law. (Pollock v. Penn. Iron Works Co., 157 N. Y. 699; Hopkins v. Clark, 158 N. Y. 299.)

We now come to the last claim put forth in support of the affirmance of the judgment, notwithstanding the error of the court in admitting the evidence, which is : That if there was evidence tending to prove an express warranty, the verdict, being general in favor of the defendants, imported that no contract of warranty existed, and being unanimously affirmed, renders immaterial the erroneous rulings relating to evidence bearing only on the question of the breach of the contract. The difficulty with this proposition is that it assumes that the jury decided that there was no express warranty made. This we may not do. The court submitted to the jury two questions, as to which it instructed them that if they found in favor of the defendants on either question their verdict should be for the defendants. Those questions were (1) Did the contract' contain an express warranty by the defendants that the document was typographically produced from movable types ? (2) If the contract contained an express warranty, was there a breach of it? As the verdict of the jury was general we are not advised whether the jury found in favor of the defendants upon the first or the second question submitted to them; and in such case it is the duty of an appellate court to reverse the judgment for substantial errors on the part of the court in either receiving or rejecting evidence bearing upon either of the issues submitted to the jury, or for errors of substance in the charge as to either of such issues.

The judgment should be reversed and a new trial granted, with costs to. abide the event.