Aulls v. Young

• Decision Date: 22 December 1893
• Citation: 98 Mich. 231,57 N.W. 119
• Court: Michigan Supreme Court
• Parties: AULLS et al. v. YOUNG.

57 N.W. 119

98 Mich. 231

AULLS et al. v. YOUNG.

Supreme Court of Michigan

December 22, 1893

Error to circuit court, Eaton county; Clement Smith, Judge.

Action by Charles M. Aulls and James L. Whitford against Lewis Young for damages for breach of contract. Judgment in justice's court for $80.79 and in circuit court for $24.31. Defendant brings error. Reversed.

James M. Powers, for appellant.

Huggett & Smith, for appellees.

GRANT J., (after stating the facts.)

1. Plaintiff Aulls was a witness, and testified to the terms of the contract. On cross-examination defendant's counsel elicited the fact that the witness made a memorandum of the contract in a book wherein he was accustomed to make entries of his purchases. At the request of defendant's counsel the witness produced the book, which the counsel took, examined, and cross-examined him therefrom, not only as to this item, but as to other items therein. Witness testified that this entry was made at the time of the purchase, and in the presence of the defendant but was not read to him. The material part of it read as follows: "6 1/2 in March, with wool, or 5 1/4, April sheared." On redirect examination this book was offered and received in evidence under objection that it was incompetent, the judge stating: "I think it is admissible under the situation the case is in. I don't think it would be admissible as original evidence. I think it may be admitted, inasmuch as it has been gone into for cross-examination. I don't think it is an evidence of sale." We see no error in this ruling. The entire subject was elicited on cross-examination, which was of such a character as naturally to cast some discredit on the witness. It was therefore proper for the jury to examine it under the instruction that it was not evidence of the original contract, but might bear upon the weight to be given to the testimony of the witness.

2. Defendant, on direct examination by his counsel, testified to the number of pounds of wool sheared. On cross-examination he was asked the price he received for it. This was answered without objection. Thereupon counsel for defendant moved to strike it out, which was denied. We do not think defendant can complain of this ruling, since he opened the door to it by showing the amount of the wool. Under the charge of the court as to damages this testimony could not have been considered by the jury, since they were limited to the difference between the price agreed on and the market price at the place of delivery.

3. Plaintiffs were permitted to show the price of sheep in the Buffalo market on the 27th of April....