Scharff v. Grossman

Ellison, J.

This is an account for a bill of whisky said to have been sold to defendant, by plaintiffs. The result in the trial court was in defendant’s, favor.

It appears from the evidence that defendant and one Denham were in the saloon business, having a license for that purpose in the name of defendant. That sometime before the expiration of the license he-sold his interest in the business to one Head and that thereafter the business was owned, run and managed by Denham & Head, though on account of the license not having yet expired, the business, by arrangement between the parties, was conducted in defendant’s name. The evidence for defendant tends to show that the sale-was made to Denham & Head and he notified plaintiff’s salesman at the time of the sale that he had no interest in the business and would not be responsible for the parchase. There was evidence in behalf of plaintiff tending to show that they were not notified and that on the contrary defendant would be responsible for the payment of the bill.

The court in a proper and correct way submitted this issue to the jury. Counsel criticise these instructions. But in our opinion they are in all respects proper as applied to the evidence. We are at loss to see how a jury after having heard and understood the points of dispute between the litigants could have been misled by the instructions. It appears to us that the matter of dispute was put clearly before them.

It is next objected that the court erred in excluding testimony in rebuttal offered by plaintiffs. Defendant had been asked by plaintiffs, on cross-examination, on the point of whether he notified plaintiffs’ salesmen that he would not be responsible for the bill, whether he also notified other salesmen for other houses and who they were. Defendant replied that he had, and gave the names of some of them. Plaintiffs offered in rebuttal to show that he had not notified these parties and it was excluded. In our opinion the offer was rightly rejected. Whether defendant had-or had not notified salesmen for other houses that he would not be responsible for purchases made by Denham & Head could not effect the present case. It was collateral to the issue. “In order to avoid an interminable multiplication of issues, it is a settled rule of practice, tb$>t when a witness is cross-examined on a matter collateral to the issue, he can not, as to his answer, be subsequently contradicted by the party putting the question. ‘The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it is a part of his case, tending to establish his plea?”’ 1 Wharton on Ev., 559.

We consider the case was correctly tried and there being evidence upon which to base the verdict we can but affirm the judgment.

All concur.