Mullaney v. C. H. Goss Co.

• Decision Date: 03 October 1923
• Docket Number: No. 444.,444.
• Citation: 122 A. 430
• Parties: MULLANEY v. C. H. GOSS CO.
• Court: Vermont Supreme Court

122 A. 430

MULLANEY

v. C. H. GOSS CO.

No. 444.

Supreme Court of Vermont. Caledonia.

Oct. 3, 1923.

Exceptions from Caledonia Comity Court; Fred M. Butler, Judge.

Action by Joseph Mullaney against C. H. Goss Company. From a judgment for plaintiff, defendant brings exceptions. Reversed and remanded.

Argued before WATSON, C. J., and POWERS, TAYLOR, and SLACK, JJ.

Searles & Graves, of St. Johnsbury, for plaintiff.

Shields & Conant, of St. Johnsbury, for defendant.

WATSON, C. J. The plaintiff, a painter, seeks to recover damages by reason of an alleged breach of contract which he claims to have had with the defendant.

Plaintiffs evidence tended to show that while working for defendant as foreman in its paint shop at Johnsbury, with a wage of $60 a week, he was informed that defendant contemplated reducing his wages to $45 a week, and took some action toward procuring employment in Gardner, Mass. With matters standing in this way to the knowledge of both parties, negotiations were had between them, defendant acting by its assistant manager, Mr. Tann, resulting in their making? a contract whereby plaintiff was to continue in defendant's service at the same wage of $60 a week. This new contract was made on May 28, 1921, plaintiff's services under it to begin June 1st. So far there is no material difference in the understanding of the parties as to the terms of the contract. They disagree, however, as to the specified time for the duration of the services: The plaintiff testified that the contract was for one year; while Tann, called as a witness by defendant, testified that the agreed duration was not one year, but that it was specified to be "so long as conditions warranted" the payment of that weekly wage. The duration of the specified term of service was therefore the vital question in the case.

It appears that on June 8, 1921, plaintiff wrote a letter to Mr. Frizzell, the president of the Gardner company, with which he had been having some negotiations concerning going to work for it, and in connection therewith having some interest in the company. Some parts of this letter were introduced in evidence by defendant as tending to impeach the testimony given by plaintiff that his contract with defendant (made May 28, 1921) was for one year. Another part of the letter reads:

"No, Mr. Frizzell, I can't see that there is any real business opportunity for me down there. True we may take on an agency, but agencies are not always a success as the location of the garage definitely excludes any possibilities of the sale of accessories and such things."

This part was offered in evidence for the purpose of impeaching the testimony of plaintiff that he made his decision not to go there on the last of May, 1921, and to the exclusion, of the offer exception was saved. For aught appearing in that part of the letter, plaintiff may have made his decision in May, and yet not have communicated it to Frizzell until the sending of this letter. There was no error in the ruling. So much of the letter as had not already been received in evidence was offered for the purpose of impeaching the testimony of the plaintiff on his claim that he had an offer by the Gardner corporation of $60 a week for a year, and exception saved to its exclusion. The plaintiff states in the letter that he had submitted the business statement of the latter corporation "to one of my closest friends, a banker, and his advice was not to buy." The letter then goes on to state what the banker said and did about the matter. This statement had no force as impeaching evidence, and was inadmissible for such purpose, and, since it was part of the offer, there was no error in excluding the whole.

Exception was taken to the charge that the jury should, If they could, harmonize what was said by plaintiff in the parts of the aforementioned letter, admitted in evidence, and his testimony on the witness stand, with the view that he testified to the truth, it being presumed that a witness testified to the truth on the stand. A similar legal question was before this court and carefully examined on principle and on authorities named, in Noyes v. Parker, 64 Vt. 379, 24 Atl. 12. There the trial court refused to comply with a request to instruct the jury that testimony tending to show that a witness has made statements out of court, which contradict his testimony in court, "is to be weighed with caution." The request was held to have been properly refused, the court saying:

"This request required the court to state to the jury as a matter of law that a certain kind of testimony was to be weighed with caution. The law does not give this, nor any other kind of testimony, if believed by the jury to be true, any particular weight or lack of weight as compared with other testimony. While the court, in its discretion, may give certain cautionary instructions in...