Hamilton Brown Shoe Company v. Milliken

• Decision Date: 05 June 1901
• Docket Number: 9,673
• Parties: HAMILTON BROWN SHOE COMPANY v. JAMES MILLIKEN
• Court: Nebraska Supreme Court

86 N.W. 913

62 Neb. 116

HAMILTON BROWN SHOE COMPANY v. JAMES MILLIKEN

No. 9,673

Supreme Court of Nebraska

June 5, 1901

ERROR from the district court for Dodge county. Tried below before MARSHALL, J. Reversed.

REVERSED AND REMANDED.

John S Bishop and Conrad Hollenbeck, for plaintiff in error.

Loomis & Abbott, contra.

ALBERT C. DUFFIE and AMES, CC., concur.

OPINION

ALBERT, C.

On November 6, 1894, the Hamilton Brown Shoe Company of St. Louis, Missouri, 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.

1. 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. Citizens' Bank v. Rhutasel, 67 Iowa 316, 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.

2. 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 can not 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.

3. 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.

4. 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 president direct to the agent of the plaintiff in 1893, and that in October, 1894, a representative of a commercial agency called on the vendee for a report which its president refused to give, whereupon its secretary gave him a copy of its annual statement published in March, 1894, in pursuance of the law governing corporations. The instruction under consideration is as follows:

"8. The jury are instructed that in order that representations may be regarded as fraudulent, so as to be ground for rescinding the contract of sale, they must be both false and fraudulently made. If they are made with an honest belief of their truth, at the time they are made, they are not fraudulent; but if made recklessly, and without any knowledge or information on the subject, calculated to induce a belief of their truthfulness, and they prove to be untrue, or if made knowing them to be false at the time, then they are fraudulent within the meaning of the law."

It will be observed that, by the foregoing, the jury were instructed in effect, that if such statements were made with an honest belief in their truth, they were not fraudulent, even though false, unless made recklessly and without any knowledge or information on the subject calculated to induce a belief of their truthfulness. ...