Hamilton Brown Shoe Co. v. Milliken
| Citation | 86 N.W. 913,62 Neb. 116 |
| Parties | HAMILTON BROWN SHOE CO. v. MILLIKEN, SHERIFF. |
| Decision Date | 05 June 1901 |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Where a deposition is taken by one party to a suit, and is not used by him, his opponent may use it in evidence.
2. If the witness has been examined as to different transactions, such party may introduce only that part of the deposition which relates to one or more transactions, but should not be permitted to introduce a portion of his testimony on any given subject, while declining to introduce all the witness has said on that subject.
3. A party to a suit is not bound by any step taken by his attorney in the latter's behalf in another action.
4. Plaintiff commenced an action in the county court, which was afterwards dismissed without prejudice. It afterwards brought its action in the district court. On the trial, defendant, over plaintiff's objection, was permitted to introduce the petition filed in the county court in evidence. Held, under the facts in the case, it should have been excluded.
5. The rule that charges a party with notice of the truth in all cases where he makes positive representations of existing facts does not apply to representations which in their nature are mere expressions of opinion.
6. In an action to rescind a sale on the ground of false and fraudulent representations as to the financial condition of the vendee, a corporation, held, (1) that the annual statement, published by authority of the vendee, showing its debts and assets, is addressed to the world; (2) that a party dealing with the vendee has a right to rely on such statement; (3) that the source from which such person receives such statement is immaterial.
7. In an action to rescind a sale on the ground of fraud, it is incumbent on the plaintiff to show that within a reasonable time from the discovery of the fraud he, in some way, indicated to the vendee his intention to rescind. The bringing of an action or any other act clearly indicative of such intention, and brought to the knowledge of the vendee, is sufficient.
Error to district court, Dodge county; Marshall, Judge.
Action by the Hamilton Brown Shoe Company against James Milliken. From a judgment in favor of defendant, plaintiff brings error. Reversed.
John S. Bishop and C. Hollenbeck, for plaintiff in error.
Loomis & Abbott, for defendant in error.
On November 6, 1894, the Hamilton Brown Shoe Company, of St. Louis, Mo., plaintiff, sold and delivered a bill of goods to the Goldgraber Dry-Goods & Clothing Company, of Fremont. Both were corporations. On December 21, 1894, the latter failed. Its store was closed under orders of attachment and chattel mortgages, and its stock seized and held by the sheriff of Dodge county, defendant, by virtue of said orders and mortgages. Thereupon the plaintiff elected to rescind its contract of sale, on the ground of fraud, and on the 17th day of September, 1895, brought an action in replevin to recover the goods sold and delivered. No bond was given, and the case proceeded as one for damages. A trial was had to a jury, which resulted in a verdict for the defendant. Judgment was rendered accordingly, and the plaintiff brings error to this court.
One of the grounds relied on by the plaintiff for a reversal is that the court erred in excluding a part of the deposition of one Goldgraber. The deposition had been taken by the defendant, and the offer of the plaintiff was a portion of the cross-examination of the witness. Upon defendant's objection thereto, the court held that plaintiff might offer the entire deposition, and then read such portions as it might see fit. The plaintiff declined to act on this suggestion, and defendant's objection was sustained. We are unable from the record to determine the correctness of this ruling. The rule appears to be that where a deposition, taken by one party to a suit, is not used by him, his opponent may use it in evidence; and, if the witness has been examined as to different transactions, such party may introduce only that part which relates to one or more of such transactions, but he should not be permitted to introduce a portion of his testimony on any given subject, while declining to introduce all the witness had said on that subject. Bank v. Rhutasel (Iowa) 25 N. W. 261. Only that portion of the deposition offered is before us. Consequently we are unable to determine whether the plaintiff brought himself within the rule just stated.
It is next argued that the court erred in excluding the answer of George L. Loomis and John W. C. Abbott in another action, which plaintiff offered as evidence in this case. We confess our inability to discover upon what theory it can be claimed that this evidence was admissible. Neither Loomis nor Abbott are parties to this suit. Neither does it appear that either of them is in any manner interested in the result, save the former in the capacity of attorney. We cannot believe it will be seriously contended that a client is bound by any steps taken by his attorney, in his own behalf, in another action. The evidence was properly excluded.
Prior to the commencement of this action, the plaintiff filed a petition in the county court of Dodge county against the defendant, seeking to recover the same goods, on the same state of facts as in this case. Subsequently, and before the commencement of this action, plaintiff dismissed its case in the county court. On the trial of this action the petition filed in the county court was received in evidence on behalf of the defendant, over plaintiff's objection. We are unable to see how the introduction of that petition in evidence served any legitimate purpose. The tendency of such evidence is to give rise to speculation and conjecture as to the result of the former action and the effect thereof on the present, and to divert the minds of the jury from the real issues. While its admission might not be sufficient, in itself, to justify a reversal, in our opinion the evidence should have been excluded.
The main question in this case arises from the instructions of the court relative to the alleged false and fraudulent representations of the vendee. It sufficiently appears that representations as to the financial condition of the vendee were made by its...
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