Pennsylvania Mining Co. v. Brady

• Citation: 14 Mich. 260
• Court: Supreme Court of Michigan
• Decision Date: 13 January 1868
• Parties: Pennsylvania Mining Co. v. Samuel P. Brady and others

14 Mich. 260

Pennsylvania Mining Co. v. Samuel P. Brady and others

Supreme Court of Michigan

January 13, 1868

Heard April 25, 1866; April 26, 1866; April 27, 1866

Error to Wayne circuit.

The facts are stated in the opinion. Judgment was rendered for plaintiff below for $ 4,637.50.

Judgment reversed, with costs, and a new trial granted.

A. W Buel & D. C. Holbrook, for plaintiff in error:

1. The old contract being discharged, the plaintiffs below should have declared upon the special agreement.

A substituted contract is a valid defense, and this proves the necessity of declaring upon it: 5 Ham. 375; 29 Barb. 156.

The cross interrogatory put to the witness Oat, and his answer thereto, should have been excluded from the jury for irrelevancy and incompetency.

This evidence had no relevancy to, or bearing on the issue; it related to a period of time eight months after commencement of the suit; and it was calculated to confuse and mislead the jury.

The first rule governing the production of evidence is, that it must correspond with the allegations, and be confined to the issue: 1 Greenl. Ev., § 51.

The relevancy of evidence depends on the issue to be tried: 10 Mich. 155.

As to the time of making objection, it comes in season, if made as in this case, at the close of the testimony, before the arguments of counsel.

The true principle on which irrelevant testimony is to be excluded, is not that one of the parties must or does object or that it is excluded in favor of, or against either party, but that it does not relate to the issue, and therefore should not be left to confuse or mislead the jury. It is even the duty of the court to exclude it, though not objected to by either party.

We claim the general rule to be that any testimony once introduced and afterwards found to be irrelevant, is subject to be objected to and excluded, on the motion of either party: 1 Greenl. Ev., § 51, a.

J. P. Whittemore, for defendant in error:

1. The performance of the agreement, proved by defendants at the trial, was to be satisfaction of plaintiff's demand except, in case of ability, or of assets after paying the other debts, the balance of the debt was to be paid. Unless the defendants below showed the plaintiff's debt discharged, or at least suspended till after suit brought by the agreement relied upon, the debt must remain unaffected by it.

2. The question to the witness, Oat, was relevant to the issue; as to whether the company was able, and whether it had anything left of the assets on hand, when the agreement which the defendant relied on was made; and to which issue the direct evidence of this witness had been given.

It was also pertinent to the question, whether the valuation on re-organization was real or nominal, as had just been stated by the witness.

OPINION

Campbell J.:

Plaintiffs in error were sued upon the common counts for goods, etc., furnished to the Northwest mining company, a corporation with which they are admitted to be legally identical; the old company having become re-organized under a new name. They pleaded the general issue, and gave notice that the account originally existing had been adjusted by a new arrangement, which will be presently referred to.

Upon the trial plaintiffs below gave proof of a claim for goods furnished, amounting on the 19th day of June, 1861, to $ 9,378.28, for which they held the Northwest company's five acceptances, payable at different times thereafter.

The defendants below then introduced evidence of an agreement, made June 19th, 1861, whereby it was agreed between the parties that the Northwest company, which claimed to be insolvent and unable to pay its debts in full, should assign to Brady & Co. (the plaintiffs below), certain copper which the latter were to receive and sell, and from the proceeds retain $ 5,743.08, and surrender said acceptances, and remit any surplus to said company; that the necessary transfers were made, and Brady & Co. received the copper under the agreement, and this was to be in full satisfaction and payment of said debt; except "that in case the company should have anything left after settling their debts, or was ever able, they would pay the plaintiffs $ 3,500, the amount of loss sustained by S. P. Brady & Co. on the settlement."

Brady & Co. received and sold the copper, paid over the surplus beyond what was to be retained by them, and gave up the acceptances.

Upon the trial the deposition of one George R. Oat was introduced and the direct examination tended to prove the...