Coey v. Darknell

• Decision Date: 13 July 1901
• Citation: 65 P. 760,25 Wash. 518
• Court: Washington Supreme Court
• Parties: COEY v. DARKNELL.

65 P. 760

25 Wash. 518

COEY v. DARKNELL.

Supreme Court of Washington

July 13, 1901

Appeal from superior court, Spokane county; Leander H. Prather Judge.

Action by Charles P. Coey against William H. Darknell, From a judgment in favor of defendant, plaintiff appeals. Reversed.

Crow &amp Williams, for appellant.

A. J Laughon, for respondent.

HADLEY J.

This action was brought to recover the amount of a promissory note made by William H. Darknell to Charles P. Coey. The note was dated April 13, 1899, matured October 1, 1899, and is for the principal sum of $237.85, with interest at 1 per cent. per month after maturity, and $50 attorney's fees should suit or action be instituted to collect it. The complaint alleges that no payments have been made upon the note, and that the whole amount of principal and interest thereon is due and unpaid. The answer admits the execution of the note, but denies the remaining allegations of the complaint. It is also alleged affirmatively in the answer that the defendant sold his interest in a crop of grain which grew upon a farm owned by plaintiff to one Collins, the agent of plaintiff, and as a consideration for such sale Collins, as agent of plaintiff, promised and agreed to credit defendant with the sum of $212 on the aforesaid note, and that thereafter said agreement made by said Collins with defendant was ratified by plaintiff. It is further alleged affirmatively that, at the special instance and request of plaintiff, defendant purchased for plaintiff's use and benefit a quantity of grain sacks, for which he paid the sum of $43, and that plaintiff thereafter used said sacks, and promised and agreed to pay defendant the sum of $43 therefor. The answer seeks to have the $212 item above mentioned credited upon the amount of said note, and also as much of the $43 item as is required to pay the balance of the note, and prays for judgment over against plaintiff in the sum of $17.25. The reply denies all the affirmative allegations of the answer. A trial was had before a jury, and a verdict returned in favor of defendant and against the plaintiff for the sum of $18.35. A motion for a new trial interposed by plaintiff was by the court denied, and judgment was thereafter entered in favor of defendant and against the plaintiff for the sum of $18.35 and costs. From said judgment the plaintiff has appealed.

At the trial respondent introduced evidence in support of the affirmative allegations of his answer. Both respondent and a witness in his behalf by the name of Dimmick testified as to the fact of the sale of the crop and the terms thereof as set up in the answer. Upon cross-examination of the said witnesses concerning the said contract of sale, appellant's counsel sought to show by them that the crop which they had testified was sold was in poor condition and of little value. General objections to questions intended to elicit such testimony were by the court sustained; whereupon counsel for appellant made the following offer: 'For the purpose of making the record, I now make an offer of what we wish to ask this witness. We offer to prove by this witness, on cross-examination on the question as to whether or not a contract was ever made, that the crop was in a very bad condition; that it was very questionable whether there would be sufficient realized from it to pay the actual harvesting expenses, including heading and threshing; and that all of the parties were familiar with the condition of the crop.' To this offer a general objection was made that the testimony was immaterial, incompetent, and irrelevant, which objection was also sustained. These rulings of the court are assigned as error, and it is urged by appellant that the error so assigned falls within the rule recently announced by this court in the cases of Wheeler v. F. A. Buck & Co., 63 P. 566, and Dimmick v. Collins, 63 P. 1101. It is conceded by counsel for respondent that unless this case can be distinguished from that of Dimmick v. Collins, supra, it will have to be reversed, and a new trial must necessarily be ordered. The last-named case involved the identical contract which is under consideration in this case. The appellant in that case, both by cross-examination of his adversary's witnesses and by his own evidence, offered to prove the character, condition, and value of the crop at the time the contract was alleged to have been made. Objections to questions having this object in view were sustained by the court. While the appellant in that case was upon the stand as a witness in his own behalf, and after he had denied the making of the alleged contract, and after he had also denied that he was to pay any sum except from the proceeds of the crop, his counsel asked him the following question: 'State what the condition of the crop was.' The court sustained an objection to said question. Thereupon counsel made an offer to prove certain facts concerning the crop, which was almost identical with the offer made in the case at bar. An objection to the proposed testimony was sustained. This court held that the evidence was relevant, and should have been admitted. It is said in the opinion in that case: 'Where there is a dispute between the parties whether or not such a contract has been made, the circumstances surrounding the transaction are permissible to show whether the contract was probable. The law assumes that men make fair bargains; that is, that when they contract they make their agreements equal.'

The case of Wheeler v. F. A. Buck & Co., supra, is cited in the opinion as decisive of the case. The opinion in the last-named case extensively discussed the principle invoked here, and many authorities bearing upon the point are cited therein. It is therefore unnecessary to review them here. In the case at bar the alleged contract for sale of the crop was set up in respondent's answer and denied by the reply. Its existence was therefore squarely in issue under the pleadings. After respondent and his witness had testified that such a contract was made, appellant sought by cross-examination to show that the crop had little value as bearing upon the improbability that such a contract was made. Respondent's counsel concedes the correctness of the rule of law announced in the cases above mentioned, but undertakes to distinguish this case from those on the ground that the controversy over the proposed testimony in this case arose during cross-examination of respondent's witnesses. It is urged that the proposed cross-examination was not proper cross-examination, for the reason that the witnesses had not been asked in chief anything about the condition or value of the crop, and several decisions of this court are cited in support of the well-known rule that the scope of cross-examination is confined to the same matters to which the examination in chief...