Cunningham v. John M. Clark & Co.

McCay, Judge.

1. We see no error in the ruling of the Judge excluding ■the evidence that the plaintiff had offered to put off on de*43fendaut bad lots of corn between the 10th and 20th, as a ground of justification for defendant in refusing to look at his second tender of corn on the 21st. There is some excuse, it is true, if the defendant was of the opinion, from the plaintiff’s acts, that he was trying his best to deceive and entrap him. But, under the contract of the 19th, to extend the time for the tender to the 21st, it would seem that the defendant had waived the previous failures, and whilst there is a moral right to distrust one who has proved faithless several times before, yet, that can hardly come within the rights the law recognizes. It was the contract, so one witness says, that the corn might be delivered on the 21st, at any time during the day. On that day it appears that plaintiff made two offers. The first offer is proven to have been in accordance with the contract; that is, it was good corn, and in sacks, better than burlaps. The secoud offer seems to have also been of the required quality in the proper sacks. There is evidence, pretty strong evidence, too, that plaintiff said, at the time of the first tender on the 21st, that the sacks were chicken gunny.” He denies this, and the proof is that they were, in fact, Dundee sacks, better than burlaps. The Judge told the jury it was for them to decide between these conflicting statements. This was, we think, the turning point of the case. The jury have found for the plaintiff; in other words, they have believed the plaintiff’s statement, and, coupled with the fact that the corn was, in fact, in Dundee bags, wfe think they had a right so to do.

2. At any rate, as the Jndge has refused a new trial, we do not think the evidence for the defendant was so strong as to make the judgment of the Judge an abuse of his discretion, to grant or refuse a new trial in such cases. As there was no error of law in the rulings of the Court on the trial, we affirm the judgment.

Judgment affirmed.