McANDREWS against SANTEE

McANDREWS against SANTEE. Supreme Court, Seventh District; General Term, September, 1869. Contracts. —Evidence. —Trial. —W itness. Under a contract for the sale of wood subject to the measurement and inspection of a third person, thé buyer is entitled to actual measurement by such person, or something equivalent, thereto. In an action on such contract, the inspector having testified that he measured the dimensions of height and width by his eye, as was his custom, —Held, that it was proper to charge the jury that they were to determine his capacity to measure correctly in that way, and that the plaintiff would not be bound by any estimate of the inspector, unless they were of opinion that his eye was, on a question of measurement, as reliable as a measuring rod. On the second trial of an action on a contract, the defendant and his witness testified to the terms of the contract, and stated that it was on a certain condition ; and on cross-examination each stated that he had testified to that condition on the former trial.—Held, that the condition being material to the merits of the controversy, it was proper to permit the plaintiff to prove that on the former trial defendant and his witness, in testifying to the contract, omitted to state such a condition. Such evidence is admissible, as in the nature of an admission as against the party, and of impeaching evidence against the witness. Appeal from an order of the county court of Steuben county, denying a motion for a new trial. The action was by John McAndrews against John Santee, for the reeovery of the purchase price of a quantity of cord wood. On the trial, John Santee, the defendant, and Isaac Santee, as witnesses for the defense, testified as to the terms of the agreement for the sale of the wood, and that it was sold subject to inspection and measurement of the Erie Railway wood agent. On their cross-examination, each of them testified that he was a witness for the defense on the previous trial of the action, and had then stated that the wood was sold subject to the inspection and measurement of the Erie Railway wood agent. After the defendant rested, the plaintiff’s counsel offered to prove that each of said witnesses, on the former trial, in giving his version of the terms of the agreement, omitted to state that the wood was sold subject to the inspection and measurement of the Erie Railway wood agent. This was objected to by defendant, as improper and immaterial; the objection was overruled, and the evidence received. Greorge W. Smith, the railway wood agent, a witness for defendant, swore that he measu; ed the wood. That it was piled in ranks. That he measured the length of the ranks with a tape line, and the height and width with his eye. That that was his usual custom, and that he had thus measured many thousands of cords. The judge, among other things, charged the jury, that “ they were to determine from their experience, observation aud knowledge, whether Smith, after measuring the length of the ranks with a line, and the height and width with his eye, with all his experience and practice in measuring wood, did in fact, or could correctly, measure the wood in that way ; that the plaintiff was entitled to an actual measurement, or its equivalent, and would not be bound" by any estimate of the railroad inspector, unless the jury were of opinion that his eye was, upon a question of measurement, as reliable as a measuring rod.” To which the defendant excepted. The plaintiff had a verdict. A motion by defendant for a new trial on a case having been denied, he appealed from the order to the supreme court at general term. W. B. Buggies, for the plaintiff and respondent. O. F. Kingsley, for the defendant and appellant. [MAJORITY — By the Court.—Johnson, J.] By the Court.—Johnson, J. The exception to the judge’s charge was a mere general exception, and 1 here is nothing to show as to which part or proposition in the charge it was intended to apply. Such an exception is of no avail where there is more than one point in a charge, and any portion of it is unexceptionable. But I think the charge was in all respects right. If the contract was that the plaintiff was to abide and be governed by the measurement of the railroad inspector of wood, in respect to the quantity, then clearly he was entitled to have the wood actually measured by such inspector, or to have something done which would be equivalent to a measurement. He would not be bound by the mere guess or loose estimate of such inspector as to quantity. In respect to the other point in the case, that the court erroneously allowed evidence to be given to show that both the defendant and his §on, who was his witness, stated the bargain for the purchase of the wood differently on the trial before the j ustice from what they had. stated it in their testimony on the trial then pending in the county court, the exception to the ruling is ' not well taken. The difference in the two statements was quite material upon the merits of the controversy, to wit: the quantity of wood which went into the purchase, to be paid for by the defendant. As to the defendant himself, it was principal evidence against him upon the issue. • It was in the nature of admissions or declarations by á party, which are always competent as principal evidence against the party making them. It was also competent as impeaching evidence against him or his witness. It is a different statement of a material fact. They denied having stated the bargain differently on the former trial, but alleged that on that occasion they had stated the bargain as they did on the then present trial. Had they admitted that they stated it differently on the former trial, and that the omission there arose from a want of the recollection of the fact at the time, it would have presented a different ques'.ion. In that case there would be no propriety in proving the former statement by other testimony. All that was decided in the case of Commonwealth v. Hawkins (3 Gray, 463), relied upon by the defendant’s counsel, was, that the mere omission to state a particular fact, now stated, in a former statement, was not the proper subject of comment by counsel to the jury against the credibility of a witness, unless the attention of such witness had been called to the omission in the course of his examination. There was no error committed in the county court, and the order must be affirmed. Present, E. D. Smith, Dwight and Johnson, JJ.