Niles v. Rhodes

Decision Date10 November 1859
Citation7 Mich. 374
CourtMichigan Supreme Court
PartiesGeorge H. Niles and another v. John B. Rhodes

Heard October 8, 1859; October 11, 1859 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

Niles & Van Anden brought suit in the court below, against Rhodes, for the price of a bill of liquors. On the trial, to prove their case, they called Charles P. Crosby, who testified as follows:

"I am the attorney of Niles & Van Anden, the plaintiffs in this suit. On or about the twentieth day of November, A. D 1857, I called the defendant, John B. Rhodes, into my office in this city, and called his attention to a bill which I now hold in my hand, and asked him to pay it. He took the bill and examined it, and said it was correct, except that he thought there was a credit of twenty-five dollars which he was entitled to, which was not credited on the bill." The bill referred to was then read in evidence, and was in the words and figures following:

"Detroit, Michigan, 1857.

"Mr. John B. Rhodes,

"Bought of Niles & Van Anden, wholesale dealers in imported wines, liquors and cigars, Woodward avenue, under Russell House, formerly National Hotel:

May 7, 1 basket Piper's champagne, quarts,

imported and sold in original packages,

$ 16.00

May 7, 1 " " " " pts.,

17.00

$ 33.00

May 13, 1 cask Muirs & Son's Sparkling

Edinburg ale, 6 doz. qts., at $ 3.75 per

doz., imported and sold in original pack

ages,

$ 22.50

May 22, 1 basket Piper's champagne, pts.,

imported and sold in original packages,

17.00

May 25, 1 cask 8 doz. Barclay, Perkins &

Co.'s London porter, 19s., imported and

sold in original packages,

$ 16.63

May 28, 3 baskets champagne, $ 16, imported

and sold in original packages,

48.00

June 17, 2 " " " $ 16, $ 17,

33.00

June 20, 5 demijohns,

5.00

$ 175.13

Cr.

Sept. 22, by cash on above,

$ 25.00

Balance due,

150.13

The plaintiffs then called Oliver Bourke, who testified as follows:

"I am a dealer in liquors; the articles mentioned in this bill, if real and genuine, are of foreign production. Barclay & Perkins's ale is of foreign production, and is made in London, England; this I know of my own knowledge; I have been at their brewery in London. Real and genuine champagne is made in a district called Campagne, in France. There is no champagne manufactured out of France."

On being cross-examined, he said: "I do not know anything about this bill; I have seen articles of the kind mentioned in the bill offered for sale in bond, and duty paid."

On his re-direct examination, he said: "There is not any genuine Piper's champagne made in this country; all real champagne is made in France."

The plaintiffs here rested their case, and the cause was thereupon submitted to the jury, under the charge of the circuit judge. The counsel for the defendant requested the circuit judge to charge the jury:

That to find a verdict for the plaintiffs, they must be satisfied, from positive proof in this case, that the wines and ales mentioned are of foreign production, and were imported, and duties paid thereon under and in accordance with the laws of the United States. The circuit judge did so charge, and plaintiffs excepted.

The defendant's counsel also requested said circuit judge to charge the jury, that the admission of the defendant that the account proved was correct, is not positive proof that the wines and ales were of foreign production, and imported under the laws of the United States, and in accordance therewith. This charge, also, the judge gave, and plaintiff excepted.

The defendant's counsel also requested the circuit judge to charge the jury, that to entitle the plaintiffs to recover for domestic wines and ales sold, they must prove them to be of domestic manufacture. And the judge charged the jury that the party claiming the benefit of the exemption of domestic wines from the operation of the statute, must prove himself within the exception. To which charge plaintiffs also excepted.

Plaintiffs' counsel then requested the judge to charge the jury, that admissions of the defendant are positive proof within the meaning of the statute.

Also, that if the jury find, from the evidence before them, that the liquors sold were of foreign production, the legal presumption arises from that fact, and the fact of their being sold here, that they were regularly imported in accordance with the laws of the United States.

Also, that if they found, from the evidence before them that the wines (mentioned in the bill) were of domestic production, a recovery for the price thereof is not prohibited by law. All which requests the judge refused, and as to the first two charged directly the contrary, and plaintiffs excepted.

Judgment having passed for defendant in the court below, plaintiffs brought error, and assigned errors in this court as follows:

"And now come the said plaintiffs by Chas. P. Crosby, their attorney, and say that in the record and proceedings aforesaid there is manifest error, in this, to wit: that the judge of the said circuit court, at the trial of the said cause in that court, gave the several instructions to the jury asked for by the defendant, and refused to give the several instructions, or any or either of them asked for by the plaintiffs. And, also, that judgment was rendered by the said circuit court in favor of the defendant in said court, and against the plaintiffs; whereas, by the law of the land the plaintiffs in the said circuit court should have had judgment against the defendant. Therefore, the said plaintiffs in error pray that the judgment aforesaid may be reversed and held for naught, and for judgment against the defendant."

Judgment affirmed.

Whittemore & Crosby, for plaintiffs in error:

1. The law only requires positive proof of the character of the wine--whether foreign or not--and not of the manner and mode of importation. Being both penal and in derogation of the common law, this act must be strictly construed. But we claim this to have been its real intent, and that such intent is alone consistent with the exemption of foreign liquors from the operation of the statute, as expressed in the first words of the section under consideration. The construction given by the circuit judge would effectually defeat this exemption, in practice.

2. But the admissions of the party are positive evidence. They clearly partake in no degree of the nature of circumstantial evidence. And the wine being thus, and by the testimony of Bourke, proved positively to have been of foreign production, and imported and sold in the original packages, the conclusion necessarily follows that it was imported according to law, and the duties paid: 3 Bl. Com., 371; 1 Greenl. Ev., §§ 14, 34, 40.

3. The statute exempts all foreign and domestic wines from its operation, subject only to the restriction as to quantity and original packages in the case of those which are foreign. And as all must be either foreign or domestic, all are excepted unless outside this restriction. Section 1661 of Comp. Laws does not prohibit the sale of wine, and the onus is on defendant to show it to be foreign, and bring his case within the prohibitions of the statute. If he show it to be domestic wine, it may be lawfully sold; and so also if he show it to be foreign, unless smuggled in, or not sold in the original packages. And when it is admitted to be foreign, we have a right to go to the jury on the presumption rising from that fact that the duties have been paid, since the law will not presume the commission of crime.

%Holbrook & Bishop, for defendant in error:

There is no special assignment of errors as required by rule 12: 7 Ind. 580; 23 Pa. St., 198; 24 Ibid. 286; 1 Kern. 416.

There was no error in the charge of the court.

Christiancy, J., Manning, J., Martin, Ch. J. Campbell, J., dissenting.

OPINION

Christiancy J.:

A preliminary objection is made to the form in which the errors are assigned. The 12th rule requires every assignment of error to be special. By this we understand that every error relied upon must be pointed out with such certainty that the defendant in error, and the court, may see from the assignment itself, every particular ground upon which a reversal of the judgment is claimed, and that the record may always disclose the grounds upon which the judgment may have been reversed or affirmed.

There were, in the court below, three distinct requests to charge made by defendant's counsel in writing. The court in answer to these several requests, charged substantially as requested. The counsel for plaintiffs also made three separate requests to charge, each of which was refused. In answer to two of these the court charged directly the contrary, without qualification, and simply refused the last. To each of these charges and refusals plaintiffs took a distinct exception. These several requests, refusals and charges, are separately and distinctly set forth in the bill of exceptions. The assignment of errors clearly refers to the bill, which is thus in effect made part of it. By this reference the errors complained of become as certain and specific, as if the assignment had repeated each of these separate requests, refusals and charges, in hoec verba, with the usual allegation of error to each; and needless repetition is avoided. The words "several instructions" used in the assignment are to be rendered distributively as applying separately to each. True, the assignment does not, in so many words, allege any error in the instructions given in answer to the first and second of the plaintiffs' requests, but as these instructions were the direct contrary of the requests, and exceptions were taken to the refusals, the same questions are raised. This form of assignment would not, of course, be...

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8 cases
  • State v. Fleming
    • United States
    • Idaho Supreme Court
    • January 11, 1910
    ...1 Ency. of Ev. 610, 611.) Evidence of admissions should be received with caution. (Bullard v. Bullard, 112 Iowa 423, 84 N.W. 513; Niles v. Rhodes, 7 Mich. 374; Ryder v. Emrich, 104 Ill. 470; Sadler v. Sadler, 16 Ark. 628.) The instruction, "The jury are instructed that it would be highly im......
  • Lincoln Square Corp. v. Motor City Paper Tube Co.
    • United States
    • Michigan Supreme Court
    • June 7, 1954
    ...of the exception, must bear the burden of proving facts bringing his case within that exception. Paton v. Coit, 5 Mich. 505, and Niles v. Rhodes, 7 Mich. 374. Plaintiff is, accordingly, not entitled to recover rent for the period during which repairs were being made to the Was plaintiff gui......
  • Cooper v. Harlow
    • United States
    • Michigan Supreme Court
    • November 11, 1910
    ...relates to a rule of evidence precisely opposed to the one which proponent was insisting should be given to the jury. See, also, Niles v. Rhodes, 7 Mich. 374. It has been stated that the case was made to revolve about Mr. Cooper and his relations with the testatrix. I am impressed that if M......
  • Danielson v. Dyckman
    • United States
    • Michigan Supreme Court
    • November 7, 1872
    ...doubtful character that the party complaining is unable on the trial to distinguish them from what is unquestionably correct. In Niles v. Rhodes, 7 Mich. 374, and Berry Lowe, 10 Mich. 9, this court sustained assignments of error which grouped together several rulings of the court, and compl......
  • Request a trial to view additional results

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