Wehle v. Spelman

8 N.Y. Sup. Ct. 634

• Court: New York Supreme Court
• Decided: July 15, 1874
• Status: Published

Opinion

Davis, P. J.:

. There is little or no difficulty in disposing of the great mass of' the exceptions taken on the trial of this case. They were not well taken. But as to one of them, this cannot be said.

The principal question litigated on the trial, was the actual value • of the goods taken from plaintiff’s store. On the part of the' plaintiff, the value was claimed to have been $10,000 or $12,000, - while the defendants insisted that the value was below $3,000. In '■ the course of the trial, one Orville H. Clapp, who was a member of the firm of Butler, Broom & Clapp (which firm were a part of the attaching-creditors, though not parties to this suit), was called and examined as a witness on behalf of defendants. His testimony chiefly related to the quantity of goods the plaintiff had in her store, and their value; and after giving his opinion, founded on his examination, and stating a conversation with plaintiff on that subject, he testified that about a week afterward, he had a conversation with Charles Wehle, in relation to the amount of stock the plaintiff had on hand. Charles Wehle, it already appeared, was the brother of plaintiff, and her lawyer. The conversation was objected to by plaintiff, and excluded by the court. The defendants’ counsel then offered to show that the witness was referred, by Mrs. Wehle (the plaintiff), “ to her brother, as to the fact of how many goods were in the store.” This was objected to by plaintiff’s counsel, and the objection was sustained by the court, and defendants excepted. The evidence offered was competent. If it had appeared that the plaintiff referred the witness to Charles Wehle, for the purpose of getting from him, information on the subject of the amount of goods in the store, that act would make him her agent for the purpose of giving such information, and his statements made when applied to under such reference would be competent evidence against the plaintiff, so far as they related to that subject.

It was therefore error to exclude the offer, inasmuch as it already appeared by the preceding question, that the object was to get the statements on that subject, of Charles Wehle, before the jury.

What would have been their effect or purport, we are not able to see. It may easily be conjectured that the evidence, if given, would have been of little or no importance, but that it would have been of none cannot be legally seen. The defendants had the right to such declarations (if they first proved the offer), and to have the jury pass upon their weight, in connection with the other testimony. They related to the principal subject of controversy. And we cannot see that, if permitted to lay the proper foundation, the defendants would not have called out important declarations touching the quantity of the goods, and affecting materially the question of value. For this error, the judgment must be reversed, and a new trial ordered, with costs to abide the event.

Daniels and Brady, JJ., concurred.

Judgment reversed and new trial ordered, costs to abide ■ the event.