Bosler v. Coble

• Decision Date: 02 April 1906
• Parties: BOSLER v. COBLE
• Court: Wyoming Supreme Court

84 P. 895

14 Wyo. 423

BOSLER v. COBLE

Supreme Court of Wyoming

April 2, 1906

ERROR to the District Court, Albany County, HON. DAVID H. CRAIG Judge.

The action was brought by John C. Coble against Frank C. Bosler upon certain promissory notes. Defendant sought by way of set-off and counterclaim to recover damages for alleged false representations of the plaintiff, upon which defendant was induced to purchase the property for which the notes in suit were given. The material facts are stated in the opinion.

Affirmed.

N. E Corthell, for plaintiff in error.

The new matters set up in the reply were properly held by the trial court to constitute a departure from the rules of pleading. They have no relation to the causes of action sued upon by the plaintiff, but undertake in part to set up new independent causes of action in tort in favor of plaintiff and against the defendant; causes of action for rescission and accounting and for an injunction, the effect of which was to restrain (through its manager) the corporation, which was not a party to the suit at all, for any disposition of its property, and to obtain in this indirect way the relief only appropriate to a writ of attachment against the defendant. Refusing to strike it out absolutely was clearly prejudicial error.

The essential obligation imposed upon Bosler by the agreement was to pay to Coble 40 per cent of the surplus proceeds of the properties over $ 215,000, which was the amount Bosler had in the enterprises; and the $ 25,000 payment in notes was an advance payment upon this 40 per cent interest in the surplus assumed to exist; the properties were subsequently sold realizing approximately $ 162,000, a sum far less than the minimum sum fixed by the agreement to be retained by Bosler; and Bosler was, therefore, entitled to have the unpaid notes returned to him and the sum of $ 10,000, previously paid on the notes, refunded. The defendant was not permitted to present the case upon this contention, either to the court or to the jury. By the instructions of the court, this defense was eliminated from the case.

The effect of the court's decision was that, under the terms of the contract and the evidence of the circumstances, but one construction was possible, and that as a matter of law the defendant's contention was conclusively wrong. The question is not without difficulty, and there is argument on both sides. There are some expressions in the contract which appear to support the plaintiff's contention; indeed, the language of the entire contract may be reconcilable with that view if no heed be taken of the situation of the parties, the character and condition of the subject matter, the actual effect of either construction upon the rights and interests of the parties, and other lights ordinarily applied in such cases. The concrete inquiry into the origin of the contract, the state of facts to which it was meant to apply, the mutual rights and obligations of the parties as they were conceded to exist, the methods they adopted, presumably to work out mutual justice, and the actual result of the contract in working out justice or injustice, reason or absurdity, are considerations which this court and all others from time immemorial have thought proper to apply to the solution of questions of this kind. (Balch v. Arnold, 9 Wyo. 27; Car Co. v. Ry. Co. (Minn.), 121 F. 609; Accumulator Co. v. Dubuque Street Ry. Co., 64 F. 70; Rockefeller v. Merritt, 76 F. 909; U. S. v. Charles, 74 F. 142; Coghlan v. Stetson, 19 F. 727; Allen v. Hammond, 11 Pet., 63; Lowber v. Bangs, 2 Wall, 728; Canal Co. v. Hill, 15 Wall, 94; U. S. v. Pack, 102 U.S. 64; Merriam v. U.S. 107 U.S. 437; Lisle v. Hopkins, 12 S. & M., 299; Carey v. Gunnison, 65 Iowa 702, 22 N.W. 934; Robinson v. Stoow, 39 Ill. 568; 24 Ency. L., 1042; Frank v. Stratford-Hancock, 13 Wyo. 37; Thompson v. Wheatland Merc. Co., 10 Wyo. 86.)

In the case at bar the contract proceeded obviously upon the assumption that there existed surplus numbers and values in the cattle and other properties of the two concerns over and above $ 215,000 which Bosler had in them in the form of stock, bonds and debts of the corporation; and of the plaintiff to him; that the extent or amount of this surplus could be accurately determined only by putting agreed values on the portions of the assets, and counting them out, and by putting upon the market the marketable portion of the cattle; that Bosler was entitled to receive his $ 215,000 and 60 per cent of the excess, the remaining per cent being due to Coble.

We think this assumption by the parties is reasonably clear from the terms of the contract itself. It more emphatically appears, however from the account, which shows that practically the entire properties had been purchased with funds furnished by Bosler; that he had not only furnished funds, by way of investments and loans, for these enterprises, but had lent Coble individually large sums, for which he held notes and mortgages; that the book accounts and stock reports kept by Bosler from data furnished by Coble indicated a very considerable surplus over the investment and that in the negotiations leading up to the contract, both of the parties figured on a large excess of resources.

The requirement by the court that all the letters, part only of which were offered by defendant, should be read entire grossly violated the fundamental rule that the evidence must correspond with the findings, and be confined to the point in issue, since much of the letters so read was entirely irrelevant. (1 Greenleaf Ev., 51; Best Pr. of Ev., 229 to 249; 1 Phillips Ev., 138, 158; 1 Starkie Ev., 40; Peake Ev., 6; Roscoe Ev., 36.) It is true that when portions of a letter are offered to be read by one party, the other party is entitled to read such other portions of the letter as are so connected with the portion offered, as to in any way qualify or explain such matter. Detached and independent statements, however, in no way connected with the statement in evidence are not admissible. (Price v. Samo, 7 Ad. & E., 627; Rouse v. Whited, 25 N.Y. 172; 1 Greenleaf on Evidence, 201; 3 Jones Ev., 822; Planter v. Planter, 78 N.Y. 90; Ellis v. Short, 38 Mass. 142.)

It has sometimes been said that error in admitting testimony will not be sufficient for reversal unless it appears to have been prejudicial to the party complaining. It is submitted, however, that this is not a considerate, careful or correct statement of the rule. The statement itself is a perversion of the rule, which is sometimes stated in the radically different form that admission of immaterial evidence is not ground for reversal, "when it appears that no prejudice resulted therefrom." (Seska v. R. R. Co., 77 Iowa 137; Deery v. Cray, 5 Wall, 795; Moores v. Nat. Bk., 104 U.S. 625; Gilmer v. Higley, 110 U.S. 47; R. R. v. O'Brien, 119 U.S. 99; Mexia v. Oliver, 148 U.S. 665; R. R. Co. v. O'Reilly, 158 U.S. 334; Lucas v. Brooks, 85 U.S. 436; U. S. v. Gentry, 119 F. 70-75; Assn. v. Schryock, 73 F. 774; R. R. Co. v. Field, 137 F. 14; Nat Biscuit Co. v. Nolan, 138 F. 6; Terry v. Starch Co., 43 Neb. 866; Winker v. Foye, 33 N. H., 171; Hoberg v. State, 3 Minn. 262; Meyers v. Malcolm, 6 O., 292; Clark v. Vorce, 19 Wend., 232; Bk. v. Winfield, 24 Wend., 219; R. R. Co. 67 N. H., 452.)

In charging the jury the court emphasized this error by an instruction in which the jury were expressly told that they should "weigh and consider the letters between the parties." Instead of this instruction it is submitted that the court should have carefully directed the jury to a discriminating consideration of those matters only which were legitimately in evidence upon the actual issues.

The plaintiff was erroneously permitted to offer much testimony as to his general reputation as a cowman. No issue was made as to Coble's reputation in this respect. It was not an issuable fact in any view of the case. It was alleged in the counterclaim that Coble represented himself to be a man of unusual skill and judgment in the business, and that the representation was untrue. This was made the pretext of the "reputation" evidence admitted by the court. It is submitted that this was prejudicial matter which can not be justified. Was it true or not that Coble was a man of exceptional skill? The witnesses do not speak upon this point, though, seemingly, they may have knowledge. They speak only as to his "repute." This testimony was hearsay, irrelevant, incompetent matter. It tended like the other matters we complain of, to draw away the minds of the jurors from the real issue, and moreover, had a positively wrongful effect in its tendency to lend credit and standing to the plaintiff by vague generalities, where specific facts and acts only were issuable. Such evidence alone is ground for reversal. (Holtzman v. Hay, 118 Ill. 534; Stevenson v. Gelsthorpe, 10 Mont. 563.)

Among the other incompetent or irrelevant matters admitted were the notes sued upon. No issue was made as to these notes. They were permitted to be thrust into the record, with other make-weights, apparently upon the theory that the sight of the notes would outweigh or overbear the defendant's evidence in the common mind. Again in the instructions of the court these notes (or the contract under which they were given) are referred to as "solemn instruments" and the jury were told that "it is inexpedient on the grounds of public policy, to set them aside upon the ground of fraud, unless proof of the fraud is clear and strong."

There was no issue in the case on the subject of negligence of either the plaintiff or the defendant; yet by the evidence and finally by the instructions the case was put before the jury to determine who was at fault for the losses among the cattle. The action...