Proud v. Strain

TAGGART, J.

Action for goods sold and delivered. Judgment for plaintiff, and defendant appeals from the order of the trial court denying his motion for a new trial.

From the bill of exceptions in the record it appears that plaintiff went to trial on a complaint which alleged the sale and delivery by plaintiff to defendant, at the latter’s request, between March 22, and May 11, 1906, of a certain quantity of cabbage at an agreed price, the payment of a part of said price and the nonpayment of a balance of $667.09; the same matter was stated as a second cause of action for the same sum upon a

quantum valebat

count. The complaint also alleged seven other causes of action, doubly stated in the same manner, based upon sales of cabbage made to defendant by seven different persons who had assigned their respective claims therefor to plaintiff. All of said sales took place between March 19 and June 27, 1906. The aggregate of unpaid balances in the several causes of action being stated at $2,141.41, for which a judgment was asked. Defendant answered, denying that any sales of cabbage had been made to him by plaintiff or any of his assignors, and alleged that all the cabbage mentioned in the several causes of action was received by him under and by virtue of several and distinct agreements in writing made by defendant with the plaintiff and each of said assignors, each of which writings was in substance as follows: “I agree to sell my cabbage for the

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season of 1906 through Thomas Strain, he to receive 10% (ten per cent) and cost of crating and loading as compensation for marketing same.” These writings were each set out in full in the answer, showing the signature of plaintiff and his assignors thereto, and the dates thereof, respectively, range from February 13, 1906, to March, 1906.

When plaintiff attempted to introduce, evidence of the terms of the sale of the cabbage to defendant, at the trial, the defendant objected on the ground that the answer would be incompetent if it attempted to vary the terms of the written agreement set out in the answer, and on the further ground that it was not the best evidence, because the written contract set up in the answer was the best evidence of this. Plaintiff then offered to prove