Bronson v. Leach
| Decision Date | 24 April 1889 |
| Citation | 42 N.W. 174,74 Mich. 713 |
| Court | Michigan Supreme Court |
| Parties | BRONSON v. LEACH. |
Error to circuit court, Calhoun county; GEORGE M. BUCK, Judge.
This suit was commenced in justice court. The declaration alleged a breach of warranty upon the sale of a cow, to-wit, "that she was then soon to be delivered of a calf," and was "coming in;" would soon be a "new milch cow;" and the said cow would be delivered of a calf on or about the last of April or first of May, 1884. The cow was purchased March 13, 1884, at an auction sale, of the defendant, the price being $40. Plaintiff gave his note for this sum. The note was sold before due, and paid when due by plaintiff. The cow did not have a calf in April or May, and not until a year from the next fall. Plaintiff claimed that the warranty was made the day before the auction, at the premises of defendant. That he and his wife had been that day to the village of Homer, and on their return home, about sundown, they passed defendant's place. Plaintiff got out of the buggy, and went and saw the cow, and had a talk with defendant, in which he warranted her to be with calf, as stated in the declaration. His wife held the horses and stayed in the buggy; but she swears that she saw Mr Leach, and advised her husband to get out and go in and see Mr. Leach about the cow, for, if the cow was not "coming in" in the spring, they did not want her, and it would save the plaintiff from coming out to the auction next day. That the plaintiff did stop, and she saw him talking with Mr Leach, but did not hear any of the conversation between them. The conversation between this witness and her husband was objected to, but admitted. It is claimed to have been a part of the res gest ; but we do not think so. Mr. Leach was not near enough to the parties to hear of this talk. She was permitted to state what she said to her husband, and what he said to her about what kind of a cow they wanted; and the only object of it must have been to corroborate the husband as to the warranty of the cow. This was not permissible. The defendant denied being there at this time, or having any conversation on that day with plaintiff. He testified that he went to Marshall on the night of the 11th, and did not get back to Homer until it was quite dark on the evening of the 12th; stayed in Homer about half an hour, and did not reach home until about 9 o'clock P. M. A son of the defendant, W. S. Leach, testified that his father was not at home when plaintiff stopped there, and that he was the man seen by Mrs. Bronson, and who showed the cow to plaintiff; but that he had no authority to warrant the cow, and did not do so. The only thing material in Mrs. Bronson's testimony was whether or not she saw the defendant at his home that day. The balance of her testimony, consisting of talk between herself and her husband, could have no legitimate bearing upon the case, and should have been excluded. It threw no light upon the disputed issue whether Leach was there, and could only be used by the jury to prove a warranty, if used at all, for which purpose it was not available, under the well-known rules of evidence. Its admission may have done harm to the defendant, as the jury were not cautioned against so using it. The jury, upon the trial in the circuit court, which we are asked by the writ of error to review, found a verdict of $24.80 in favor of the plaintiff.
There are 21 assignments of error, and most all of them are insisted upon in the argument of defendant's counsel. We shall notice only so many of them as we think entitled to discussion. The testimony of John Powers as to his conversation with the plaintiff after the sale was properly admitted under the statement of plaintiff's counsel that it was in the presence of defendant. The evidence of Powers when given, however, failed to show that the talk was either in the hearing or presence of defendant, and should have been stricken from the case. The question as to what hour the train arrived in Homer, upon which it was conceded the defendant came from Marshall to Homer on the 12th, was an important and vital one, bearing upon the fact whether or not plaintiff saw defendant at his home that day. In order to fix this time, the plaintiff introduced in evidence a register or record of the arrival and departure of trains on the Lake Shore & Michigan Southern Railway. This record was kept by the train dispatcher at Hillsdale, and made by him from telegraphic dispatches sent to him, at the time they were received by him. It is made and kept by him for future reference, and is claimed to be a complete, perfect, and authentic record of the movements of all trains on the road. The memoranda upon the register, the figures showing the arrival and departure of trains, were in pencil. This testimony would have been proper if it had been duly authenticated. Morris, the station agent at Homer, in whose possession it was at the time of the trial, testified that he had no knowledge of the time when the trains arrived that day except as he obtained the same from this record. He did not make the record. He testified that it was in the handwriting of the train dispatcher, who was at Hillsdale, and that he (witness) brought it from Hillsdale...
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