Ames v. Quimby

• Decision Date: 13 November 1882
• Citation: 106 U.S. 342,27 L.Ed. 100,1 S.Ct. 116
• Parties: AMES and others v. QUIMBY
• Court: U.S. Supreme Court

106 U.S. 342

1 S.Ct. 116

27 L.Ed. 100

AMES and others v. QUIMBY.

November 13, 1882.

M. J. Smiley, for plaintiffs in error.

L. D. Norris, for defendant in error.

BLATCHFORD, J.

The defendant in error brought this suit against the plaintiffs in error in July, 1872, in a court of the state of Michigan. It was removed into the circuit court for the western district of Michigan in August, 1872, before the declaration was filed. The action is assumpsit. The declaration claims $25,000 for goods sold and delivered, and a like amount for money had and received, and $15,000 for interest. The plea was non-assumpsit, with a notice of setoff off to the amount of $25,000, and a notice that the goods alleged to have been furnished by the plaintiff were furnished under a special contract that they were to be of first-class quality, and that they were not. A further notice under the plea alleged that the goods furnished were furnished under three several contracts, made January 2, 1865, January 27, 1866, and December 25, 1866, for the furnishing by the plaintiff to the defendants of shovel handles; and that the plaintiff did not fulfill the contracts as to the quality of the handles. In April, 1875, the suit was tried by the court without a jury. On the findings of the court a judgment was rendered for the plaintiff for $7,825.62. The defendants brought the case to this court by a writ of error, and the judgment was reversed, and the cause was remanded to the circuit court with directions to award a new trial. The decision of this court is reported in 96 U. S. 324. The only question there presented and determined was as to the proper construction of a written contract made between the parties January 2, 1865, in a particular not now important. The construction put by the court below upon that contract was held to have been erroneous. The case was tried a second time before a jury in April, 1879. The jury found a verdict for the plaintiff for $12,816.53, and a judgment thereon was rendered against the defendants. To review and reverse this judgment the present writ of error has been brought.

The plaintiff, to maintain the issues on his part, read in evidence a stipulation, signed by the respective attorneys, whereby the defendants admitted the sale and delivery of shovel handles shipped to the defendant's firm and received by it at North Easton, Massachusetts, at the dates and in the quantities therein set forth, being, in 1865, 15,607 dozen, in 6 items, in May and July; in 1866, 10,188 dozen, in 13 items, in June, July, August, and September, and 2,852 dozen, in 3 items, in November and December, up to the 20th; in 1867, 33,814 dozen, in 37 items, in every month but January, November, and December; and in 1868, 11,113 dozen, in 11 items, in April, May, July, September, and October. The stipulation stated that the dates given were the dates of the shipment by rail from Michigan and Canada; that the dates of the receipt by the defendants at North Easton were 15 days later than the several dates of shipment; and that the plaintiff admitted payments on account of said handles, at the dates and in the sums specified thereafter in the stipulation, the payments amounting to $83,153.48. The stipulation concluded with this clause: 'The question of the quality of the handles delivered as aforesaid, and all other questions of fact not stipulated, are left open to the jury and for other and further evidence.' The plaintiff was then examined as a witness on his own behalf. On his cross-examination he testified that there was a contract signed by the parties for 1865 for handles. The contract being shown to him, he 'identified' it, as the bill of exceptions states, and it was read in evidence by the defendants. It bore the date of January 2, 1865. The plaintiff rested his case, and the defendants introduced testimony and rested their defense. One of the defendants testified that he made the contract of 1865, and it was made in the evening, and he stated who were present. Then the plaintiff, being recalled, testified, without objection, that the contract dated January 2, 1865, was not signed on that day—on the evening of that day. He was then asked, 'When was that contract signed?' The defendants objected to the question on the ground that 'it was irrelevant and immaterial, and there had been no previous denial by affidavit or otherwise of the execution of the contract, and it was incompetent.' The plaintiff replied that the fact of the execution of the contract was not denied, 'but he proposes to show the time of the execution of the contract was on Sunday, which avoids the contract.' The court overruled the objection, and the defendants excepted. The witness then answered that the contract was signed and delivered on Sunday, January 1, 1865, stating the hour and the place, and giving particulars as to who were present and what was done. The defendants then gave testimony by three witnesses to contradict the plaintiff. The defendants now contend that the court erred in permitting the plaintiff to testify that the contract was executed on Sunday, in view of the then situation of the case and what had transpired on the trial; that he had given evidence as to its execution and allowed it to be put in evidence without suggesting any infirmity in it; and that the defendants would necessarily be surprised by such testimony. The defendants also claim that, under a rule of court governing the pleadings and practice in Michigan, where a defendant insists on a claim by way of set-off, founded on a written instrument, he cannot 'be put to the proof of the execution of the instrument or the handwriting' of the opposite party, unless an affidavit is filed 'denying the same;' that the failure of the plaintiff to file such affidavit was an admission of the execution of the instrument in manner and form as set up, and as being of the date of January 2d; and that the testimony went to show that the contract set up was not executed.

The only ground alleged at the trial for the incompetency of the evidence was that the execution of the contract had not been denied by affidavit. Assuming that the rule of court referred to can be taken notice of by this court, it not being set forth in the record, and there being no statement in the record that the affidavit referred to was required by any rule of court, and assuming that it is to be inferred that there was not any such affidavit, it not being set forth in the bill of exceptions that there was not, we are of opinion that the rule cited refers only to proof of the genuineness of a seal or of handwriting, and does not refer to any matter which goes to show the invalidity otherwise of an instrument. Such a provision in a rule of court or in a statute is not uncommon, and, whenever it is expressed in language such as that now presented, it has never, that we are aware, received any other construction.

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