Granger v. Lewis Bros.

Peck, J.

Lewis Bros., sued Jane Granger in the district court for goods sold and delivered; the answer sets up two defenses, one, the general denial; the other, coverture existing at commencement of the suit and nonjoinder of the husband. The pleadings consist of the petition and answer. The case was tried by a jury and a verdict rendered for the plaintiffs below. Sundry exceptions were taken during the trial by the defendant below; and a proper bill of exceptions was filed, and thus became a part of the record. She reasonably moved for a new trial upon the several grounds, namely: that the verdict was not sustained by sufficient evidence, and was against the law; that the court erred in admitting the deposition of Samuel Lewis, also in admitting evidence against her objection ; in taking from the jury a material issue of tlie case ; in instructing the jury to disregard evidence adduced to support the second defense; and in refusing to instruct it according to her requests. The motion was duly heard, denied, and a proper exception taken to the denial; and it, the motion, the denial and the exception thereto are a part of the record. The writ of error having been duly returned, she filed an assignment of errors, re-stating with some difference of particularity those that were alleged in the motion ; the assignment is more specific and amplified, but not more comprehensive and .clear than the motion, and is a part of the record.

Both sides assume that a motion for a new trial by the present plaintiff was necessary to preserve her exceptions ; notwithstanding a difference in the court on the subject, we, to dispose of this case, will treat a motion as necessary for that purpose. If necessary, the motion is of-the basis of the assignment, and its imperfections cannot be cured by filing an assignment here. The learned counsel for the present defendants object that the motion was too general to point the attention of the district court to the prior exceptions ; that the latter were thus lost, and the assignment is valueless. He has cited several cases from Indiana and Nebraska which seem to countenance that proposition. These decisions, however, belong to a vicious practice that acquired growth in this country; is opposed to English rule which is our guide; is utterly adverse to the functions of an appellate court, has no sound principle to rest upon, and no palliation but in the pressure of appellate business— a practice of inventing refinements to smother appeals, to close the door of the courts to the suitor, to worry him by embarrassing and senseless niceties, to treat him as if he was to be heard rather as the recipient of favor, than' the representative of right; instead of aiming to examine his complaint to see if, peradventure, he has been wronged; and to the end that whatever wrong has been committed may be righted. This court may not deviate from the better law; it must keep in tlie old. path; it must leave the door of review well open, that in the calm atmosphere of a tribunal of final adjudication, errors which have escaped attention below, may be ascertained and corrected, and the relations of the parties adjusted upon théir rights. I can conceive of no institution in the judicial system more important than the court of last resort; its importance increases with the increase of litigation, and it should be easy of access.

The true rule upon the subject of the learned counsel’s proposition is, that if the motion intelligently refers the court to the prior exceptions, it is the duty of the court to look .back into them. This is the rule at common law upon a motion for a new trial based on the judge’s minutes; and the present is such a motion in its nature and principle; the transcript of the official stenographer, filed and thus a part of the record, is still the judge’s minutes; and this motion is based upon such a transcript. By this rule it will be found that the motion now before us is sufficiently definitive, clearly referring the court to the prior exceptions; also to the objection, that the verdict was not sustained by sufficient evidence — an objection which might be raised by the motion without prior exception.

The first ground of the motion is, that the verdict was rendered without sufficient evidence, and against the law. To have been rendered without sufficient evidence, there must either have been a conflict, and the verdict against the weight of evidence, and by a rule precise, clear and technical ; it was then the duty of the lower court to relieve her of the verdict; or the case must have gone to the jury on evidence insufficient to establish a prima facie case for the plaintiff, and then it was the duty of that court to vacate the verdict, though the defendant had omitted to claim before the jury was sent out, a non-suit, and that was its duty, because notwithstanding this neglect of the defendant, the verdict had no basis, and if any ruling of the court on the trial, either in the course of the evidence, or in instructing or refusing to instruct the jury, error was committed, against the defendant below, that error must have served to produce the verdict, and the verdict have been against law; thus each specification of this two-fold ground of the motion, intelligently referred the court to error in the trial, if error existed, entitled the mover to a new trial, and made it the duty of the district court, and mates it our duty, to look back, and see whether there was error; so that this first ground alleged in the motion suffices to secure for the party a thorough examination of the previous' case without further complaint; and the additional specifications in the motion were and are superfluous.

But rejecting the first ground, the subsequent grounds are so specified as to unmistakably connect themselves with the 'prior parts of the case, to which they refer; whether erroneously or not, the district court did admit the deposition of Samuel Lewis and other evidence against the objection of the defendant, and the record unmistakably identifies the evidence and the corresponding exceptions; it did instruct the jury to disregard the evidence adduced in support of the second defense, and withdrew the issue presented by that defense, from the jury; and the second clearly identifies these instructions, and the exception that was taken to them; it did refuse to instruct according to her requests, and the record fully identifies the refusals and the exceptions that were taken to them. This brings us to the merits of the exceptions. We will consider them in their order, as they stand in the record.

The plaintiffs below offered the deposition of one of their firm, Samuel Lewis, which was objected to as “ hearsay, incompetent and.irrelevant,” without specifying a particular part as objectionable, but predicating the objection of the entire deposition. The witness testified only as to a sale as made by this firm, of cigars to the defendant, to the prices, certain credits allowed upon the sale, delivery to and non-payment by her; also to his age, residence, occupation and the composition of his firm. His entire evidence was relevant, and the objection for irrelevancy was unsound. ,As to the objection that the deposition was hearsay and incompetent; more or less of it was founded on personal knowledge, for aught that can be. seen to the contrary,— it was not open to this objection as a whole, — and if any part of it was so obnoxious, it was the duty of the objector to point it out specifically to the court, and for want of the specification it was defective; but no part would have been so specified, unless the statement of the witness that the firm sold and shipped the goods from San Francisco to the defendant at Rawlins in this territory, “ through its agent; ” whether this statement was hearsay or not, would depend upon how the witness got his information; if he obtained it from the agent it was hearsay, if from the defendant, it was personal; the deposition does not indicate the source, and as long as the deponent might have had personal knowledge on the subject, we cannot say that he had not. Hence the entire objection failed, and the deposition was properly admitted. The plaintiffs below introduced evidence in their opening, that in August, 1875, they sold the defendant below 7,975 cigars of various brands, and on the 23d of the month shipped them in three cases from San Francisco to her at Rawlins, addressed “Jane Granger, Rawlins, Wyoming.” This last-mentioned evidence was by three witnesses, who testified by depositions taken in 1877 and 1878, and speak of her as “Mrs. Jane Granger;” but there is nothing in their evidence to indicate that that was anything else than their description of her, at the time of testifying; and if their evidence-can be understood as so describing her at the time of the alleged sale, it has no tendency to show that she was then, or afterwards, married. Next after the reading of the depositions, .the plaintiffs introduced as a witness, Joseph B. Adams, who on his direct examination in chief was asked, if he knew the defendant, Jane Granger, in July and August of 1875; having answered that he did, he was asked what, if any, business'she was doing then; to which question her counsel objected, on the ground that the husband must be co-defendant with the wife, unless it appears that the action relates to her sole and separate property, for which purpose it must be so alleged in the petition, and the allegation be supported by'proof; and further objected to the introduction of any proof by the plaintiff that she was carrying on business on her own account, or that it was her sole and separate business or property; and, so further objected on the ground that such evidence would be irrelevant, improper and not confined to the issue. The objection was overruled, and an exception taken.

The objection was alternative, assuming for its basis, first, that it already appeared that the defendant was under co-verture at'the time of sale and commencement of the action ; and, secondly, that the question tended to show that in July and August, 1875, she was carrying on business on her own account, or that the action related to her sole and separate property; coverture had not appeared, nor was there in the case any testimony tending to establish it; there was therefore, no ground for the objection, and it is unnecessary for us to decide whether the exception that it specifies is recognized by the statute, or if recognized, whether it is conditioned by the rule of pleading that the objection specifies. The objection was properly overruled.

The witness then answered, that she was doing a general merchandising business in groceries and dry goods, (adding) and at Rawlins. Continuing, and on the same examination, he stated that during those months he was agent therefor the Union Pacific Railroad Company; and was then asked, if during that August, as such agent, he received these goods, “ marked to Mrs. Jane Granger;” the question was objected to as incompetent, irrelevant and immaterial; the objection was overruled, and an exception taken. The objection was apparently a renewal of the last one, and was properly overruled. He answered that he did; that he received goods for her every month. Proceeding, and upon the same examination, the witness testified that he, as such agent, received there in or near August, 1875, two cases of cigars from Lewis Brothers, marked to Jane Granger, at Rawlins, and that they were delivered to William Granger ; that the cigars were in boxes made of very thin boards, — as he supposed, regular cigar boxes; the witness was then asked for whom they were delivered to William Granger: she objected to the question for irrelevancy, immateriality and incompetency; the objection was overruled and an exception taken. The question had but one of two tendencies : either to show a delivery to William Granger for another party than Jane Granger, and, therefore, they were not for her, and in that view it was unfavorable to the prosecution, and favorable to the defendant; or to show that they were delivered to her by being delivered to him, which was simply showing what the plaintiffs might show at that stage of the case. The objection was properly overruled. The witness answered that the two boxes were delivered to William Granger, for Jane Granger. This evidence, coupled with other evidence tending to show that they passed from William to Jane, or that he was her agent to receive them, or, if not, that she ratified his receiving them, and the evidence credited by the jury, the plaintiff would have established a delivery to the defendant, either by a delivery to her in person, or by a delivery to her agent; thus illustrating the propriety of the question. On cross-examination the witness stated that he did not know the contents of the boxes. And during this examination he was questioned by the court, and answered as follows, and without objection:

Question. Was Mr. Granger acting as the agent for anyone; or was it for himself he was receiving those boxes?

Answer. He was receiving them as I supposed, the same as he was receiving all of Jane Granger’s goods ; he received them and transacted business in her name.

Question. He was acting as agent, then* in this transaction ?

Answer. That was my understanding of the matter.

So much of the first of those two questions as asked whether William Granger received the boxes for himself, and so much, of his answer as stated that he was receiving all (meaning all the other goods) and transacting business in her name, was proper; the residue of the question, because calling for, and the residue of the answer, because expressing the opinion of the witness,'were improper; for this reason the second question and its answer were improper. Though the defendant made no objection to these improper jDarts at the time, we are not prepared to say that she might not at any time afterwards during the trial haye had them stricken out; nor that they did not in law stand as stricken out from the first; and for the purposes of the objection, which we must come to, we treat them, as if they had been stricken out. So stricken out, the remaining and unexceptionable evidence of the witness was, that before the arrival of the two boxes at Rawlins he, as the agent of the railroad company, had received these goods for Jane Granger monthly, and that William Granger had received them all from the company, and had transacted business in her name; this evidence tended to show that the latter had received the prior arrivals as her agent, and was her general agent in her trades; and that was the capacity with which the testimony had clothed him down to the putting of the question, which we next consider.

At the close of his re-examination the witness left the stand, and then by leave of the court was recalled by the plaintiffs, and was asked by the court: “ What did Mr. Granger say, if anything, as to the contents of those boxes ? ” (meaning the boxes i-n question) ; the defendant objected, unless it was shown that William Granger was agent of Jane Granger. The objection conceding the propriety of the question, provided the agency appeared, the objection was overruled and an exception taken. As the agency had been shown, the objection defeated itself by its own limitation, and was properly overruled.

The witness’ cross-examination tended to show that when the two boxes arrived in August the Grangers refused to receive them; that in October following, the agent of Lewis Bros, was there and agreed with William Granger that, to save the firm expense of storage with the railroad company, and so for the accommodation of the firm, he, Granger, should pay the freight upon them, and take them into his possession, but with the further condition that, should he want them, he was to retain and p>ay for them,— not wanting them, that they should be subject to the disposal of the firm; that he thereupon paid the freight, and took the two cases into his possession accordingly. Having been so recalled by the plaintiff he stated, without objection from the defendant, that on a subsequent occasion at Rawlins this agent of the firm demanded of William Granger payment for the two cases; that the latter objected on the ground that one of them had not been received by him; to ■which the agent replied that it might be in his cellar, and proposed that a search be made there for it, but Granger objected; that a conversation then followed between them; at this point the plaintiff called for the conversation — the question was objected to for irrelevancy and immateriality; the objection was overruled and an exception taken. When the objection was ruled upon, all that appeared of the conversation was, that it was based upon the demand, and led to the search. Upon the assumption that the jury would find that William Granger was a principal in the October arrangement, and the defendant not the vendee of the two boxes, the conversation would be irrelevant, and therefore immaterial. But they might find that he was her agent in that arrangement, and as such took the possession of the boxes, and that she therefore was the vendee; in this alternative he would, in the absence of further explanation, stand as having posesssion at the time of. the demand, and in that capacity; the demand was in effect to pay, or return; it was a demand upon him as her agent, to account for the property; it was then as relevant to prove the conversation as it was to prove the demand which led to it; as it was to prove the search which resulted from it; and the pertinency in proof of the demand and search was neither questioned, nor could it be intelligently questioned. The objection was properly overruled.

The plaintiffs rested, and the defendant introduced evidence tending to show that she was a married woman at the time of the commencement of the suit. She requested the court to instruct the jury that if they should find that she was a married woman then a verdict should be returned for her; the court refused so to instruct, but did instruct that the question whether she was then married, was not a question for them; and she excepted to the refusal to instruct, as so requested, and to the instruction as so given.

The plaintiffs’ claim was founded on the theory, and their proof tended to show that when the alleged sale was made, the defendant was conducting at Rawlins a trade on her sole and separate account, and that the merchandise in question was sold and delivered to her for that trade; but it did not appear, nor was there evidence tending to show that she was married at the time of the sale; the consequence was that at the common law, she being under coverture when the suit-was brought, the husband was a necessary co-defendant. Had it appeared in the case, or had the evidence tended to show that she was under coverture at the time of sale and institution of suit, it would have become necessary to determine the effect upon the case of the act of December 4th, 1869, which at its section 5 on page 481 of the Compilation permits a married woman to conduct trade on her sole and separate account; and to sue and be sued as if she were a feme sole ; it would have been necessary to determine that effect, provided the act was in force in that particular as to suit, when the trial was had; but in the present state of the case that act cannot apply, and its effect cannot be considered. As the evidence tended to support the second defense; it wras error in the district court to withdraw that evidence from the jury.

The defendant also excepted to the instruction and to each and every part thereof. This was an exception to the charge as a whole, not calling attention to any particular part; therefore reached no defect, if there was any besides that which we have considered; but there was no other. The rest of the charge was upon the first issue and consisted in submitting it to the jury. This leads to the objection that the verdict was not sustained by sufficient evidence; it was based upon the first issue, the evidence under this issue was conflicting, and we cannot say that the jury arrived at an erroneous conclusion from it.

This disposes of all the objections that were taken below by, the plaintiff in error.

The judgment rendered below is reversed — the case remanded and a new trial ordered.