Gregg v. Willis

• Decision Date: 06 May 1899
• Citation: 45 A. 229,71 Vt. 313
• Parties: GREGG v. WILLIS.
• Court: Vermont Supreme Court

45 A. 229

71 Vt. 313

GREGG

v. WILLIS.

Supreme Court of Vermont. Windham.

May 6, 1899.

Exceptions from Windham county court.

Action by Andrew Gregg against Masa Willis. From a judgment for defendant, plaintiff brings exceptions. Affirmed.

Clarke C. Fitts, Haskins & Schwenk, and L. M. Read, for plaintiff.

Waterman, Martin & Hitt, for defendant.

THOMPSON, J. The plaintiff claimed to recover of the defendant the amount of a note for $1,000, executed and delivered to him by the defendant. No question was made as to the execution of the note, and it was conceded that the consideration therefor was $1,000, delivered to the defendant by the plaintiff at or about the time of its execution. The defendant's evidence tended to show that at the time in question his son, H. B. Willis, and E. J. Carey were partners in business at Brattleboro, Vt, under the firm name of the Thorn Medicine Company; that June 19, 1890, he loaned them the $1,000 borrowed of the plaintiff; that thereafter, in the summer of 1890, the plaintiff purchased a one-third interest in the business of the company, and agreed to pay there for $1,300, and that it was then mutually agreed by the plaintiff, the defendant, Carey, and H. B. Willis that $1,000 of said $1,300 should be paid the defendant by surrendering to him the note in suit and certain collateral security pledged with the note, then held by the plaintiff, and that this should pay the $1,000 loaned the firm; that thereupon the plaintiff surrendered the collateral security to the defendant, but said his wife had the note, and he wished to conceal from her the fact that he had purchased an interest in the company, and that he could not get the note that day, but would thereafter procure it, and surrender it to the defendant, or destroy it. The plaintiff never surrendered nor destroyed the note, but produced it on trial. If the arrangement was as claimed by the defendant, it then and there operated to extinguish the debt of $1,000 then owing from the Thorn Medicine Company to the defendant, and the note in suit owing from the defendant to the plaintiff. The defendant's evidence tended to show that plaintiff remained a member of the firm about eight weeks, and then sold out his interest therein to his partners for $1,000, taking their note therefor. Some months after the summer of 1890, the company closed its business.

1. On cross-examination of H. B. Willis, the plaintiff asked him if the firm, at the time it closed its business, was not owing the defendant $2,000. This question was excluded as immaterial, to which the plaintiff excepted. The plaintiff also excepted to the exclusion of his Exhibit B. Neither of these exceptions can be sustained, for the reason that the record does not show that, in the then aspect of the case, the question or Exhibit B was relevant to any issue on trial by reason of evidence already introduced, or by reason of an offer to show facts which would make the same relevant. To make the exclusion of evidence error, it must appear affirmatively that at the time of its exclusion the record of the trial court disclosed such facts as would make such evidence admissible, or that, in connection with the offer of it there was also an offer to show such facts as would render it admissible.

2. On cross-examination the plaintiff also asked the same witness when the plaintiff left the medicine company, if he ever left it. This question was excluded. The exception to its exclusion cannot be sustained, for the reason that the time when he left the company, if he ever left It, was Immaterial, so far as any issue on trial was concerned. While the question might have been permitted in the discretion of the trial court, it was not reversible error to exclude it.

3. If it were true that the plaintiff never sold out any interest in the medicine company, and neither received nor was paid anything when its property was sold, and never received anything for his alleged interest in the firm, such facts would have no tendency to prove that the note in suit was not extinguished in the manner claimed by the defendant. Hence the offer of the plaintiff to show such fact was properly excluded.

4. If the plaintiff bought a third interest in the Thorn Medicine Company under an arrangement by which the note was paid as claimed, there was no evidence tending to show that he ever rescinded the contract by which he became such partner. There is, therefore, no occasion to discuss the relative rights of the defendant and plaintiff had the latter rescinded the contract by which he became a partner, because he was induced to enter into it by the fraudulent representations in respect to the business and property of the firm made to him by his partners. There having been no rescission, the defendant was not affected by anything that occurred between the plaintiff and his partners in that respect, unless the defendant was a party to the fraud. If such a fraud was perpetrated upon the plaintiff, there was no evidence tending to prove that the defendant participated in it Therefore it was not error to exclude the offer to show that the plaintiff was induced to buy an interest in the firm by the fraudulent representations of his partners. Nor was it error to exclude the inquiry on examination', made to H. B. Willis, as to whether, at the time the plaintiff was investigating the affairs of the firm with a view of making the purchase, its books then shown him did not disclose that the concern was then bankrupt. This last exception cannot prevail for the further...