David D. Lefler, Respondent, v. Percy H. Field et al., Appellants

David D. Lefler, Respondent, v. Percy H. Field et al., Appellants. (Argued December 23, 1872; decided January 21, 1873.) In an action to recover the purchase-price of a quantity of barley, the answer alleged that plaintiff represented it to be good, first quality, merchantable barley, and that defendants’ agent, who made the purchase, relied upon this representation; that the barley was not merchantable, which fact was known to plaintiff. Held, that this answer did not raise an issue of fraud, as it omitted two essential elements to constitute fraud, i. e., that plaintiff made the representation with intent to defraud, and that defendants or their agent were deceived by it. Questions on cross-examination upon irrelevant subjects are in the sound discretion of the court, and the exercise of this discretion is not subject to review save in cases of plain abuse and injustice. This is an action to recover the purchase-price of plaintiff’s crop of barley, alleged to have been sold and delivered to defendants. Defendants’ answer in substance alleged that their agent with whom the contract was alleged to have been made was previously authorized to buy merchantable barley; that he contracted for plaintiff’s crop, provided it was merchantable ; that said plaintiff represented the barley to be good, first quality, merchantable barley, on which representation said agent relied in making the contract; that the contract was void under the statute of frauds; that such agent saw the barley before delivery and notified him of defendants’instructions; that the barley was not merchantable, which fact was known to plaintiff, and, therefore, defendants refused to accept, and that the barley was received in store by the agent for plaintiff. Upon the trial, plaintiff was examine;! as a witness upon iiis own behalf, and upon cross-examination was asked: “Did you intend to sell that barley to Mr. Morehouse (defendants’ agent) as merchantable or not?” This was objected to and objection sustained. Held, no error. 1st. That the answer did not raise the question of fraud, as it omitted to allege essential elements of fraud, to wit, an allegation that plaintiff made the representations with intent to deceive, and that defendants or their agent were in fact deceived. 2d. That the intent, save as expressed in the contract, was immaterial; that conceding the question was proper upon cross-examination as bearing upon the credibility of plaintiff as a witness, there was no such right to put it as made its rejection legal error, (that it was within the sound discretion of the court and not a subject of review, as it did not present a case of plain abuse and injustice. Upon the cross-examination of defendants’ agent by plaintiff’s counsel, he was asked: “'How much did barley fall in price between the time you made the bargain and the time you wrote the letter to Fields ? ” This was excepted to by defendants and allowed. Held, no error; that the question was proper on cross-examination, and its allowance a matter of discretion. The defendants asked said agent: “ What instructions, if any, had you from defendants as to what quality of barley you should purchase?” Upon objection the referee ruled that the witness could not answer unless the instructions were communicated to plaintiff at or before the time the bargain was made. Held, no error. It appeared upon the trial that the contract was for plaintiff’s whole crop, but that he kept back twenty-five bushels for seed. This objection did not appear to have been taken upon the trial, nor did it appear that defendants refused to pay upon that ground. Held, that it was waived. A, McDonald for the appellants. George F. Danforth for the respondent. [MAJORITY — Folgkek, J.,] Folgkek, J., reads for affirmance. All concur. Judgment affirmed.