Davis v. Randall

• Decision Date: 09 October 1911
• Citation: Davis v. Randall, 85 Vt. 70, 81 A. 250 (Vt. 1911)
• Parties: DAVIS v. RANDALL.
• Court: Vermont Supreme Court

81 A. 250

85 Vt. 70

DAVIS

v. RANDALL.

Supreme Court of Vermont. Windham.

Oct. 9, 1911.

Exceptions from Windham County Court; Willard W. Miles, Judge.

Assumpsit by Charles L. Davis against Hugh Randall. The plea was the general issue. Verdict and judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Gibson & Waterman and O. R. Clayton, for plaintiff.

Loren R. Pierce and Charles S. Chase, for defendant.

POWERS, J. The plaintiff exchanged a pair of oxen with the defendant for a horse. This horse was of uncertain age and was lame, and the plaintiff claimed, and gave evidence tending to show, that it was stipulated in the trade that if the horse turned out to be over 12 years old, or failed to get over its lameness, the defendant should take it back and pay $125 for the oxen. The defendant denied this, and claimed, and gave evidence tending to show, that the transaction was a simple exchange of property, without any conditions or special agreements. When the case was submitted to us, it was orally agreed by counsel that a transcript of the evidence was to be treated as referred to and made to control, though the exceptions did not contain such reference.

During the cross-examination of the plaintiff, he was shown a letter, signed by him and addressed to one Wheeler, wherein it was stated that the horse in question was a "good worker and an extra good walker," and was asked if he wrote or caused to be written a letter containing that statement. This question was excluded, and an exception allowed the defendant. Shortly after this ruling, the witness admitted writing the letter, and it was received in evidence and read to the jury. So the defendant, having received the full benefit of the letter and its contents, is not in a position to complain, and this exception is unavailing.

As bearing on the probability of his making the special agreement testified to by the plaintiff, the defendant offered to show the condition and value of the oxen at the time of the exchange, expecting, as counsel stated, to show that the cattle were worth much less than $125. This was excluded, and the defendant excepted. It is true, as suggested by the court, that the value of the property was not put in issue by the pleadings, and the general rule is that the evidence must correspond with the allegations and be confined to the point in issue. But facts affording a reasonable presumption or inference as to the principal fact or matter in issue are not excluded. Any fact, though it be collateral, which renders a material fact more probable or improbable, is proper evidence, and may be considered in determining whether that facts exists. Tufts v. Chester, 62 Vt. 353, 19 Atl. 988. So, when the parties to a contract disagree as to its terms, and the evidence thereof is conflicting, it is often permissible to show the value of the property involved. Thus, in Houghton v. Clough, 30 Vt. 312, the question was whether the...