Wellersburg & West Newton Plank Road Co. v. Bruce

Mason, J., delivered the opinion of this court. In proving his case, a plaintiff is not confined to any particular order in which to offer his evidence. If the evidence be legal and material to the issue, it should be received by the court without reference to the order in which it is introduced. Ca ton vs. Carter, 9 Gill & Johns., 476.

But if on the other hand testimony is offered which has no tendency to prove the issue in the case, it is error to permit it to go to the jury: and where legal testimony has been received, but which turns out to be so light and inconclusive that no rational mind can infer from it the fact which it is offered to establish, or where there is an entire failure of evidence upon any one material fact involved in the issue, it is the duty of the court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant them in finding the fact thus attempted to be proved. Clarke vs. Marriott, 9 Gill, 331 . Maslin vs. Thomas, 8 Gill, 18 . Hatton vs. McClish, ante, 407.

Upon these general principles depends the question involved in the first exception. That the testimony, the subscription list, which was rejected, was legal and competent, there can be no doubt. It was as essential to the plaintiff’s right to recover, that they should prove the defendant’s promise to pay, as it was to establish their own corporate existence, and it was for the plaintiffs to determine which of these facts should be first established. There was no authority in the court to require, as a condition upon which this evidence was to be received, that the plaintiffs should disclose in advance what other proof they intended to offer, and the rejection of the ⁴⁶⁵ evidence on that account was therefore erroneous.

The legal sufficiency however of this evidence to establish the whole case is quite a different question. The issue was made up of two substantive propositions, both of which the plaintiffs were obliged to prove before they could recover; one was their own corporate existence, and the other was the promise, implied or expressed, of the defendant to pay his subscription; and should the plaintiffs only establish one of those propositions, but entirely fail to prove the other, there would be virtually and practically such a failure of evidence as to defeat their ease. These questions however cannot arise upon the admissibility of evidence, but must be presented by prayers after the evidence has been closed. The second exception presents virtually the same question, and was therefore for the same reasons erroneous.

The third exception presenting the question of the propriety of the ruling of the court in granting the defendants* prayer, which was, that the plaintiffs’ had not sufficiently shown their corporate existence to entitle them to recover, need not, the court think, be commented upon or decided, upon this appeal. The judgment being reversed upon other exceptions, and the cause remanded, this question becomes immaterial, in the opinion of the majority of the court, because upon a second trial, the supposed defects in the plain-'. tiffs’’ chain of proof, can be easily supplied. It is my individual opinion we are bound also to decide the third exception in this recordfor if the evidence offered by the plaintiffs was defective in not sufficiently showing their corporate existence, the judgment ought to be affirmed, notwithstanding the error of the ruling of the court in the 1st and 2nd exceptions. These errors would therefore become' wholly immaterial, for even though the rejected evidence had been admitted, it would not have varied the result, assuming that the corporate existence of the plaintiffs was not sufficiently established.

The case should be decided upon the record as it is before us, and we have no power to reverse a judgment upon an immaterial point, merely for the purpose ⁴⁶⁶ of granting either party a new trial, and upon the supposition that new and better testimony might be offered. 7 Har. Johns., 147. 4 Gill & Johns., 273. 9 Gill & Johns., 439. 9 Gill, 1, 56, 156 . I concurred however in the reversal of this judgment, because I believed there was error also in the ruling of the circuit court upon the third exception, and that upon the case as made in the record, the plaintiffs were entitled to recover, if the