McNeil v. Barney

By the Court: The argument having been concluded, Chief Justice Wallace, speaking for the court, said: “We think the instruction, which is the subject of the nineteenth exception, erroneous; it is as follows: ‘If you should find that the defendant was at this time under contract with Meyerstein & Co. to haul a certain amount of freight, for instance, fifty tons a month for the period of one year, that fact will go far toward clearing up any suspicion attaching to testimony [605]going to prove a contract, without other apparent reasons.’ ”

This instruction was not upon a question of law, but upon the matter of fact involved, and the weight of the evidence, which should be left to the determination of the jury.

Besides, the proposition is incorrect in itself. The plaintiff alleged in his complaint that he had entered into a contract with the defendant Barney to do certain hauling for the latter; the defendant in his answer denied the making of the contract. The first question to be determined, therefore, was, whether such a contract had been in fact made.

In order to lend probability to the plaintiff’s claim that the contract had been made, he was allowed to prove that the defendant was himself at the time under a contract with a third party (Meyerstein & Co.), to haul fifty tons of freight per month. The independent circumstance that the defendant had undertaken to have that much hauling done for a third person is, under the instruction, to be taken as going to prove that the defendant had employed the plaintiff to do the hauling; the supposition being that he must have employed some one for that purpose, and that in all probability that some one was the particular person who is the plaintiff in this action.

The court is of the opinion that the judgment must be reversed and the cause remanded for a new trial, and it is so ordered.