Bertoli v. Smith
| Decision Date | 27 July 1897 |
| Citation | 38 A. 76,69 Vt. 425 |
| Parties | H. J. BERTOLI v. E. L. SMITH & CO |
| Court | Vermont Supreme Court |
January Term, 1897.
ASSUMPSIT. Plea, the general issue. Trial by jury at the September Term, 1896, Washington County, Taft, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted.
Judgment affirmed.
John W. Gordon for the defendants.
Fred L. Laird for the plaintiff.
Present ROSS, C. J., ROWELL, TYLER, MUNSON and START, JJ.
The tablets for which the plaintiff seeks to recover were sold to the defendants by one W. A. Rice, who received credit for them on an account which the defendants had against him. The plaintiffs' evidence tended to show that he was the owner of the tablets, and had specially authorized Rice to make the sale. The defendants' evidence tended to show that the plaintiff's ownership was not disclosed and that they bought with an understanding that Rice was the owner.
The plaintiff testified that when he called upon the defendants for payment they told him they had paid Rice, and that he understood from this that they had paid him in money, and thereupon brought a suit against Rice. The testimony as to his understanding was objected to, but was properly received. It was permissible for the plaintiff to explain how he came to sue Rice, and as a part of that explanation to state what he understood from the statement that Rice had been paid. The bringing of the suit against Rice upon such information and understanding cannot be urged in defense of this suit. Action taken without a knowledge of the facts does not amount to an election. 7 Ency. Plead. & Pract. 366. See White v. White, 68 Vt. 161.
The plaintiff produced witnesses who testified that Rice's reputation for truth was below par. The defendant proposed to show, as affecting the credibility of the witnesses, that they had had some trouble with Rice about claims which they severally had against him, and this offer was excluded. An impeaching witness may be asked whether he has had a quarrel with the witness whom he discredits. Long v Lamkin, 63 Mass. 361. But in showing the hostility of a witness, a party is not entitled to inquire into the cause or the particulars of the difficulty. 73 Am. Dec. 775 note; State v. Glynn, 51 Vt. 577. It was within the discretion of the court to restrict the evidence to the simple fact of trouble, and as this offer embraced more it was not error to exclude it. Nor were the defendants entitled to show that Rice was indebted to the bank of which one of these witnesses was cashier.
The defendants were not entitled to the charge requested, and the charge as given was correct as applied to the case presented. The person making this sale did not have the property in his possession. The defendants' own testimony showed that the tablets were in the shop of the plaintiff at the time of the sale, and that they went there to examine them before making the purchase. It is clear that one who purchases from an agent who has neither the possession of the goods, nor the muniments of title, cannot defend against the undisclosed principal by showing that he credited the goods on a claim against...
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