Benglesdorf v. Hanway

Page, J., delivered the opinion of the Court. In this case three exceptions were taken, the first of which was abandoned at the argument. The second exception arose as follows : The action was brought by the appellant to recover damages for breach of contract. There was no dispute at the trial that the appellant in the spring of 1896 contracted to grow and sell to the appellee twenty acres of tomatoes, to be delivered to and received by the appellee, at his canning-house, as they ²¹⁸ ripened through the season.

It was charged in the declaration that the appellant delivered a part of the crop, and was ready and willing to deliver the balance, but the appellee failed and refused to accept or pay for any more. The appellant, to sustain his case, offered evidence tending to show the quantity of tomatoes raised, and that he made deliveries of them at the canning-house,until the fourteenth of September, and that on that day the appellee refused to accept any more, alleging that he had decided to close his canning-house on the Wednesday following, “ as he was losing money every day,” and “not to bring any more tomatoes.” The appellee, on the other, having presented himself as a witness, denied having had such a conversation and testified that on the fourteenth day of September the appellant brought a load of tomatoes, some of which were soft, and that after some conversation about them, the appellee told the appellant “ to go home and pick good marketable tomatoes, he would take all he had ;” to which the appellant replied “ that he could not get his pickers to pick the right kind ; had been trying all the season to get them to pick right, but could not do it, and he be d-d if he would have another tomato pickedand that on the next day the appellant was at the canning-house, but brought no toma'toes, and the appellee asked him why he had brought none, and appellant said he “ be d^-d if he could bring any more, as his pickers would not pick right for him, and he was going to turn his cows in on them, and was going to plow them upthat he could bring no more; and that the appellee told the appellant that he would take all he had, if he had any more; but that appellee “never heard afterwards that the appellent had any more.” After the appellee had closed his evidence, the appellant again testified ; he denied the conversation referred to in the testimony of the appellee, and then offered to further prove by himself, as a witness, that he never had any trouble with his pickers during the season of 1896 about the way they picked his tomatoes ; that they always picked satisfactorily, ²¹⁹ and he never had any trouble with them about picking green or rotten tomatoes. The refusal of the Court to allow this testimony to be given constitutes the second exception. One of the defences set up by the pleas was that the appellant had refused and neglected to deliver the tomatoes.

To sustain this, the appellee had testified to a conversation in which the appellant had said he could bring no more tomatoes, and gave as his reason therefor, that his pickers would not pick them properly ; and further, that in fact the appellee never heard afterwards that the appellant had any more. The appellant denied having had such a conversation, or made the statement attributed to him. The issue, therefore, raised by these conflicting statements, was, did or did not the appellee in fact make such a statement. Under the pleadings it was wholly immaterial whether he had had trouble with his pickers, because the contract made it a duty upon him to deliver the tomatoes, no matter what the relations between himself and his pickers may have been.

The evidence excluded by the ruling of the Court had no tendency to rebut the proof that had gone in; that there had been such a statement made by the appellant, and could therefore have no value in sustaining the denial; that the appellant had not made such a statement. Even if it be conceded that the