Goldman v. Bashore

California Supreme Court Aug 5, 1889 No. No. 12988Published

Before: Foote, Fox

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Holding. The court affirmed the judgment and order, holding that the defendant's pleading labeled as a cross-complaint was properly treated as an answer, that the challenged jury instruction was not evidenced in the record, that an unsigned letter was admissible to explain the plaintiffs' failure to accept certain wood, and that the exclusion of testimony regarding the defendant's damages was harmless error.

Issues

Whether the trial court erred in denying the defendant's motion for judgment on the pleadings regarding a document labeled as a cross-complaint.
Whether the trial court erred in giving an allegedly erroneous jury instruction not evidenced in the record.
Whether an unsigned letter was properly admitted into evidence to explain the plaintiffs' failure to accept wood.
Whether the exclusion of testimony regarding the defendant's damages constituted reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“No error was therefore committed in denying the motion.”

“It is plain that this letter was therefore admissible as tending to show that the plaintiffs were not to blame for not taking the fifteen hundred cords of wood”

“But even if this was erroneous, it was harmless, because she had already stated, without objection, that her loss was about $3,750”

Synopsis

Pleading—Answer—Cross-complaint—Judgment on Pleadings.—A portion of an answer introduced in the following language: “And for a further and separate answer the defendant files her cross-complaint, and alleges,” etc., —does not constitute a cross-complaint, or entitle the defendant to a judgment on the pleadings for failure of the plaintiff to answer thereto.

Bill of Exceptions — Instruction.—The embodying of an instruction in the specifications of error at the end of the body of the statement or bill of exceptions, reciting that the court erred in instructing the jury as follows, etc., cannot be considered as evidence that the court granted such instruction.

Assumpsit — Contract to Deliver Wood—Evidence—Unsigned Letter. —In an action of assumpsit for goods sold and money paid out and advanced for defendant, where the defendant pleads a special contract to deliver a quantity of wood to plaintiffs, which plaintiffs refused to receive, and the proof shows that the refusal only applied to wood for which an order was given upon a third party, an unsigned letter forbidding plaintiffs to take that wood, which there was evidence tending to show had been sent to plaintiffs by the attorney of such third person, is admissible for plaintiffs as tending to show that they were not at fault for not taking such wood as part of defendant’s delivery.

Exclusion of Repeated Evidence.—The court may properly refuse to allow a party to again testify to what he has already testified to.

Opinion — Foote

Foote. C. The plaintiffs brought this action to recover from the defendant $1,639.07, dué upon an account for goods, wares, and merchandise sold by them to the defendant, and for money paid, laid out, and expended to her use, and for money advanced to her.

She answered, alleging, by way of defense, that she had made a contract with the plaintiffs, by which they agreed to purchase from her at a certain price per cord not less than two thousand, nor more than two. thousand five hundred, cords of wood, to be delivered at a certain place within a certain time; that she agreed to receive as part pay for the same merchandise at the rate of thirty-five dollars upon the one hundred- dollars’ worth of wood delivered, and that she did receive such goods, wares, and merchandise in part pay for wood which she delivered, and not otherwise. And that although she complied with her contract, and delivered two thousand cords of wood subject to the plaintiffs’ order at the time and place agreed upon, that they refused to take the wood, or pay for it, or comply with the contract. She further claims that by reason of their failure to comply with the contract, she has been damaged in the sum of three thousand dollars, for which, and costs, she asks judgment against them.

The plaintiffs had judgment for only a part of their claim, from which, and an order refusing a new trial, the defendant appeals.

Defendant claims, among other things, that the court [149]erred in. refusing to grant her motion for judgment on the pleadings on what she denominated a cross-complaint, which the plaintiffs did not answer. But the alleged cause of cross-complaint was not pleaded as such. It is couched in this language: “And for a further and separate answer, the defendant files her cross-complaint, and alleges.” A similar pleading was treated as an answer in Shain v. Belvin, 79 Cal. 262. No error was therefore committed in denying the motion.

It is further urged that an instruction given by the court was erroneous.

There is no bill of exceptions here to make it evident that any such instruction was ever given, nor does the statement show it.

The fact that the specification of “ errors of law ” at the end of the body of the statement recites that “the court erred in instructing the jury as follows,” setting out the language of the alleged instruction, is not sufficient. It cannot be considered as evidence that the court granted any such instruction.

Goldman v. Bashore

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Synopsis

Opinion — Foote

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Dissent — Fox

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