Aiken v. Kennison

• Decision Date: 31 August 1886
• Citation: Aiken v. Kennison, 58 Vt. 665, 5 A. 757 (Vt. 1886)
• Parties: GEORGE W. AIKEN v. E. A. KENNISON
• Court: Vermont Supreme Court

5 A. 757

58 Vt. 665

GEORGE W. AIKEN v. E. A. KENNISON

Supreme Court of Vermont, Orleans County

August 31, 1886

Trover for the conversion of a horse. Trial by jury, ROSS, J. presiding. Verdict for the defendant. The plaintiff's evidence tended to show that on the defendant's request he, plaintiff, told him he would purchase a horse for him and that defendant might have the horse when he paid for it that defendant consented, and that thereupon he gave him the following writing to take to one Miller: "Plin Miller: If you trade with E. A. Kennison for a horse, I will pay you for him about the middle of this month. (Signed) G. W. AIKEN." On the same day, January 9, 1883, the defendant took the writing to said Miller, traded for the horse, and took it into his possession. At the same time the plaintiff made the following entry in his book in his account against defendant: "January 9. Horse of Pliny Miller." The plaintiff's evidence further tended to show, that on February 16, 1883, he gave a written consent to the defendant, that he might exchange this horse for another horse provided he, plaintiff, had the money paid in exchange, and also a lien on the second horse; that the defendant exchanged the horse, and soon after sold the one received. The defendant denied that plaintiff ever had any interest in or lien upon either of said horses; and his evidence tended to show that he made the purchase of the horse from said Miller in his own name and right, and took a bill of sale from said Miller therefor at the date of the purchase; that plaintiff gave him the writing before mentioned merely for the purpose of assuming the payment of said horse, and not for the purpose of purchasing the said horse for himself, or of acquiring any lien on it. On trial the plaintiff produced his book showing his account with the defendant, and showing the entry in pencil above named, and the same were put in evidence without objection. The plaintiff's counsel then proposed to ask the plaintiff upon his examination in chief, whether he had had other transactions of a similar nature with other people dealing with him. the evidence was excluded. When the defendant took the horse from Miller he also took a common bill of sale of the horse. The bill of sale was offered on the trial as evidence in behalf of the defendant and admitted.

Affirmed.

Crane & Alfred, for the plaintiff.

There was error in excluding the evidence offered to show that the plaintiff had had other transactions with other people of a similar nature. Houghton v. Clough, 30 Vt. 312; Hine v. Pomeroy, 39 Vt. 211; Hardy v. Cheney, 42 Vt. 417, 421; Missisquoi Bank v. Evarts. 45 Vt. 293; Soules v. Burton, 36 Vt. 652, 656. The bill of sale was not admissible. 2 Best Ev. 877: Way v. Holton, 46 Vt. 184; Worden v. Powers, 37 Vt. 619-621; Wilmot v. Charter Oak Life Ins. Co. 46 Conn. 483, 496; Stirling v. Buckingham, 46 Conn. 461-464; Moore v. Meacham, 10 N.Y. 207, 210; 57 Vt. 278.

L. H. Thompson, for the defendant.

The evidence excluded by the court related to matter wholly inter alios. It had no tendency to prove that plaintiff had a lien on the horse. Boyden v. Brookline, 8 Vt. 284; Phelps, Dodge & Co. v. Conant & Co., 30 Vt. 277; Bishop v. Wheeler, 46 Vt. 413; Nones v. Northouse, 46 Vt. 592; Walworth v. Barron, 54 Vt. 684. The bill of sale was admissible. 1 Greenl. Ev. (12th ed.) s. 108; 2 Best Ev. (Wood's ed.) s. 495; Elkins v. Hamilton, 20 Vt. 627; Bank of Woodstock v. Clark, 25 Vt. 308; Ross v. Bank, 1 Aik. 43; State v. Howard, 32 Vt. 380; Danforth v. Streeter, 28 Vt. 494; Eddy v. Davis, 34 Vt. 209; Hill v. North, 34 Vt. 616.

OPINION

ROWELL, J.

Phelps, Dodge & Co. v. Conant & Co., 30 Vt. 277, is sufficient authority against the first exception; but as "frequent recurrence to fundamental principles" is as necessary in law as in liberty, we will advert to the general rule under which such evidence is excluded.

The maxim that a transaction between two persons ought not to operate to the disadvantage of a third, though somewhat obscure in its application, because it does not show how unconnected transactions should be supposed to to be relevant to each other, and though failing in its literal sense, because it is not true that a man cannot be affected by a transaction to which he is not a party, is nevertheless one of the most important and most practically useful maxims of the law of evidence. It means, as Mr. Justice STEPHEN says, that you are not to draw inferences from one transaction to another that is not specifically connected with it merely because the two resemble each other; that they must be linked together by the chain of cause and effect in some assignable way before you can draw your inference. Steph. Dig. Ev. 198, note vi.

But this rule has its exceptions, and one of them is--which is claimed to be applicable here--that where the question is whether a thing was done or not, the existence of any course of office or business according to which it naturally would or would not have been done, is a relevant fact. But as here was no offer to show any such course of office or business, the case is not brought within this exception; and as there is no other exception to the rule within which it is brought, it is left to stand on the rule itself, which, as we have seen, excludes similar but unconnected facts. 1 Whart. Ev. s. 29. Mr. Phillips says it is considered in general that no reasonable presumption can be drawn as to the making or the execution of a contract by a party with one person in consequence of the mode in which he has made or executed similar contracts with other persons. 1 Phil. Ev. 748.

A reference to a few cases will serve to illustrate the rule.

In assumpsit for use and occupation, the question being whether the rent was payable quarterly or half-yearly, Lord KENYON would not allow the plaintiff to show that his other tenants like the defendant paid their rents quarterly, and said that it had been solemnly determined in a trial at the bar that evidence of the custom of one manor was no evidence of the custom...