G. C. Berkley v. Burlington Cadillac Co., Inc

• Decision Date: 03 November 1925
• Parties: G. C. BERKLEY v. BURLINGTON CADILLAC CO., INC
• Court: Vermont Supreme Court

131 A. 16

99 Vt. 227

G. C. BERKLEY v. BURLINGTON CADILLAC CO., INC

Supreme Court of Vermont

November 3, 1925

May Term, 1925.

ACTION OF CONTRACT for breach of warranty in sale of automobile. Plea, general issue. Trial by jury at the March Term, 1924 Franklin County, Thompson, J., presiding. Verdict and judgment for plaintiff. The opinion states the case.

Reversed and remanded.

M G. Leary and Watson & McFeeters for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

TAYLOR

This case has once before been here on exceptions by the defendant, some of which were sustained. See 97 Vt. 260, 122 A. 665. The second trial likewise resulted in a verdict and judgment for the plaintiff, and the defendant again seeks a reversal on exceptions.

A group of exceptions raises the question whether the court erred in excluding "Defts. 1," which was identified as a copy of an order for a Cadillac automobile placed by the plaintiff with the defendant on January 25, 1921. It appeared without contradiction that at the time this order was given the parties had agreed upon an exchange of automobiles. Plaintiff delivered his used car to the defendant, for which he was to be credited $ 3,000 on the car specified in the order. By a subsequent arrangement a different automobile was substituted for the one originally ordered. Still later, because of defendant's inability to deliver this car on time, negotiations were had resulting in plaintiff's accepting the automobile in question, which the defendant had in stock at its place of business in Burlington. Plaintiff is seeking to recover for the breach of warranties claimed to have been made with reference to the condition of the car that was finally delivered to him. His evidence tended to show that the car was warranted to be new and in all respects in good condition. This was in effect admitted by the defendant. The principal issue on trial was whether the car did or did not answer these requirements.

The original order was offered in evidence in connection with plaintiff's testimony as well as the testimony of defendant's salesmen who conducted the transaction as tending to show the contract under which the car in question was purchased. None of this group of exceptions presents reversible error. It was not claimed that the car delivered to the plaintiff was the car described in the order. The fact that the plaintiff stated in the course of his cross-examination that he took the car in question in consummation of the original trade would not, in the circumstances, affect the result. All that was claimed to be shown by the order already appeared in evidence without objection. If admissible, it was only as part of the history of the transaction. Manifestly it did not embody the contract on which this action is based and had no bearing on the matters in dispute. Besides the offer of the exhibit, which came at the very close of the plaintiff's evidence, was inconsistent with defendant's position during the introduction of the evidence. Testimony relating to any other car except the one that was delivered to the plaintiff was objected to and only admitted so far as necessary to an understanding of the conversations in which the warranties relied upon were made. Any such reference, even, to prior negotiations was excepted to by the defendant. The exception to the part of the charge wherein the court alluded to the original contract is without merit. It was merely introductory and could not in any way have prejudiced the defendant.

The defendant briefs a group of exceptions which assign error because of certain alleged voluntary statements made by the plaintiff in answer to questions in cross-examination. Most of the questioned answers were not strictly responsive. However, it is not every irresponsive answer given by a party that will support an exception. Not only must such an answer be improper in substance, but it must be apparent that the party intends to go beyond the question and thereby gain an advantage. Underwood v. Cray, 94 Vt. 58, 60, 108 A. 513; Sanders v. Burnham, 91 Vt. 480, 100 A. 905. Answers of a party, though irresponsive, having some bearing upon the issues of the case, would not ordinarily present reversible error. Cutler & Martin v. Skeels, 69 Vt. 154, 37 A. 228; Holman v. Edson, 81 Vt. 49, 69 A. 143, 15 Ann. Cas. 1089. The matter is to a large extent in the hands of the trial court, to be dealt with as justice may require. Symes v. Fletcher, 95 Vt. 431, 438, 115 A. 502; Sanders v. Burnham, 91 Vt. 480, 483, 100 A. 905. Such of the answers as bore upon the issues the court permitted to stand. In some instances the testimony given was immaterial, and the court directed that it be struck out and instructed the jury to disregard it. In no instance was such immaterial evidence prejudicial in character. There is nothing in the record to show such misconduct on plaintiff's part as requires a reversal. It would seem that the court dealt with the matter properly and adequately; at least, it does not sufficiently appear that the defendant's rights were prejudiced.

It had appeared that the purchase price of the automobile in question was about $ 6,000. As bearing upon the question of damages, the plaintiff testified in direct examination that in his opinion the fair cash value of the car when delivered to him was from $ 1,500 to $ 2,000. As part of its case, the defendant called the plaintiff to the stand, and, pending the question whether he had got the car insured, which was objected to as immaterial, offered to show that plaintiff had the car insured "far in excess of the amount" he had testified the car was worth when he purchased it. An exception was saved to the exclusion of the offer. Counsel on both sides treat the question as though plaintiff had been recalled for further cross-examination. It would seem that the offer was proper subject-matter of cross-examination. Counsel invoke the best evidence rule to sustain the ruling; but the offer being to show an independent fact and not the terms or provisions of a written instrument, the rule would not be applicable. Wetmore & Morse Granite Co. v. Ryle, 93 Vt. 245, 251, 107 A. 109. Nor can the ruling be sustained upon the theory that the offer was not made as part of plaintiff's cross-examination. The offered evidence would be material in defense (Phelps v. Root, 78 Vt. 493, 504, 63 A. 941), and it would be competent to call the plaintiff as a witness to the fact. But it is not made to appear that the defendant was harmed by the exclusion of the offer. The rule of damages in the case was given as the difference between the actual value of the automobile at the time of the sale and the amount plaintiff paid for it, with interest on the difference for three years. The verdict was for $ 2,015.35, or considerably less than half of plaintiff's minimum estimate of his damages. The jury evidently rejected plaintiff's estimate in arriving at their verdict.

Plaintiff had given his note for the balance of the purchase price of the car secured by a mortgage thereon. Payments had been made on the note, leaving about $ 2,000 due when proceedings for the foreclosure of the mortgage were instituted. Thereupon, plaintiff took up the note, and about the same time brought this suit. Plaintiff testified that he repeatedly complained of the defects in the car and that, when asked to pay the note, he had told the defendant's manager he was able and willing to pay the balance when the car was put in proper condition, but that he would not pay therefor until it was made good. This line of evidence was denied by the defendant, and its evidence tended to show that plaintiff did not complain of defects in the car until after the foreclosure proceedings were commenced. Defendant's manager, Mr. Jimmo, testified that he had a talk with the plaintiff in the latter part of November, 1921, about raising money to pay the balance due on the car; that plaintiff informed witness that he was making arrangements to do so; that about December 9 witness had a talk with plaintiff in reference to getting some one to take over the mortgage note and hold it for him so that defendant might get its money; that plaintiff asked witness to see H. Elmer Wheeler for some purpose in connection with defendant's claim; that he saw Mr. Wheeler in compliance with plaintiff's request. Mr. Wheeler was called as a witness by the defendant, and identified "Deft.'s 6" as a letter that he had written and mailed to the defendant and "Deft.'s 8" as a carbon copy of the reply received by him.

Numerous offers of evidence were made in connection with the testimony of these two witnesses. Exceptions saved to the exclusion of the offers are treated together in the briefs. By several separate offers it was proposed to show by Mr. Jimmo that plaintiff sent the witness to Wheeler to see if he would take over the mortgage and hold it to give plaintiff longer time in which to pay; that witness had a conversation with Wheeler with reference to the matter as requested; that he found Wheeler willing to take up the mortgage and hold it providing the defendant would discount the note ten per cent.; that witness secured Wheeler's assent to the proposal that the defendant would discount the note five per cent., if plaintiff would stand the other five per cent.; that witness returned and reported to plaintiff his negotiations with Wheeler and defendant's willingness to discount the note five per cent., if plaintiff would take care of the other five per cent. It was further offered to show by Wheeler that plaintiff requested him to take up and hold the note and mortgage; that thereupon witness wrote the defendant on October 25, 1921, in reference to the matter. This...