FOURTH DEPARTMENT, JANUARY TERM, 1875. jury came to the conclusion that there was a contract by which the defendant was to have the privilege of putting in a certain amount of wheat as was equivalent to what was on the ground when he took possession, and no agreement for the residue, if Winegar had mingled the two, he must submit to any amount the jury might find." The argument of counsel in support of this request, is, that although the jury might find that there was an agreement between the parties, that the defendant should sow to wheat as much land before the termination of his lease, and harvest it afterward, as had been sown before the commencement of his lease, and afterward harvested by the plaintiff, yet, as this agreement did not apply to all the wheat sown and harvested by the defendant, that the plaintiff was entitled to recover for all the residue taken off, in case the jury should find that it was not sown and taken off under a new and independent agreement, as claimed by defendant. The action was brought for the entire quantity of 1,000 bushels of wheat. The plaintiff had demanded payment for the whole crop of wheat taken off by the defendant, without distinguishing between any parcels, and denied on the trial and contested the defendant's right to take off any of such wheat. The circuit judge held, in effect, that there was no basis in the evidence, to distinguish between the two parcels of wheat taken off by the defendant under the two contracts set up by him in his defense, and the plaintiff must consequently recover for all or none. It seems to me that this is a mistaken view of the evidence, and of the law applicable thereto. The defendant claimed to sow, under the agreement first made with the plaintiff, fifteen or sixteen acres of wheat, in lieu of the same quantity sown before he took his lease, and that all the land sown to wheat above said fifteen acres, he had rented at seven dollars per acre. The fields of wheat sown and harvested by the defendant, amounted to twenty-four or twenty-five acres. For all the wheat taken off these fields, except the fifteen acres, the defendant had no claim or title, unless he established such new and independent agreement therefor, to pay rent for said land at seven dollars per acre. The wheat taken off the land by the defendant, was all mingled by him, and he could not tell how much came from the fifteen acres, or any particular fifteen acres of said land, or how much from the residue; but he could not deprive the plaintiff of the right to recover for FOURTH DEPARTMENT, JANUARY TERM, 1875. the wheat grown on nine or ten acres of the rented land, because he had mingled it with his own. That was his fault, if he had no title to such wheat, and the request of the defendant's counsel, in this view, was a sound and proper request. The jury had several elements of evidence or data, upon which they could have apportioned the wheat, and determined how much damages the plaintiff was entitled to recover, provided they found that the defendant had established no agreement to sow more than fifteen acres. They had the quantity of land sown with the wheat, the quantity threshed at the barn, which the defendant said was 620 or 630 bushels, and evidence besides, that four loads were drawn away unthreshed, and that these loads would average twelve or fifteen shocks to a load, and a bushel to a shock. The defendant said also, that there were about 500 bushels in all after it was cleaned, and the value was two dollars a bushel. From these data I have no doubt, assuming that the defendant was entitled to the wheat growing on fifteen or sixteen acres, and no more, that a jury of farmers in Livingston county, where this cause was tried, would very soon have determined how much the plaintiff was entitled to recover for the wheat grown on the remaining eight or nine acres, if the plaintiff was entitled to recover for such wheat. But if there was any uncertainty in respect to the quantity for which the plaintiff was entitled to recover upon this assumption, the defendant, having caused such uncertainty by mingling the plaintiff's wheat with his own, was bound to prove the true quantity belonging to the plaintiff, or stand the loss or the risk of mistake in the calculation of the jury resulting from such confusion of the wheat. And this was, in substance, the proposition which the counsel for the plaintiff requested the judge to submit to the jury, and the same was so understood and construed by him in his opinion denying the motion for a new trial. The rule in respect to the confusion of goods. assumed in the request, is so stated by Chancellor KENT, in Hart v. Ten Eyck, and the same rule is asserted in Lupton v. White, † and when the action is for damages, the damages are to be given to the utmost value the article will bear. In that case Judge * +15 Vesey, 440. *2 Johns. Chy., 108. Armory v. Delamirie, 1 Strange, 505; Rockwell v. Saunders, 19 Barb., 473, charge of CADY, J.; Silsbury v. McCoon, 3 N. Y., 389. FOURTH DEPARTMENT, JANUARY TERM, 1875. RUGGLES, cites with approval the case of Bullock v. Dibler, * where the plaintiff had mixed his own hay with the defendant's, and the latter had taken and carried away all the hay thus intermixed. It was held that, the plaintiff having intermixed the hay, "the defendant should not be guilty for any part of the hay, for by the intermixture, he should not be prejudiced in taking the hay." The exception to that part of the charge which instructed the jury that they might find an implied agreement in respect to the sowing, reaping and taking away either part of the said wheat, I think was also well taken. In the absence of any express agreement, claimed or proved, in many cases an agreement may be implied from circumstances, as stated by the judge, but, as in this case, where an express agreement was claimed and proved, it can hardly be admissible or strictly correct for a jury to imply an agreement of the same nature and effect. The proof in this case, upon which the jury were advised they might imply an agreement, was all properly received, and admissible as corroborative of the defenddant's testimony, asserting and tending to establish an express agreement. The defendant had testified positively to an express agreement made between him and the plaintiff, in respect to the sowing of the two parcels of land, and, if the jury would not believe him on this point with the evidence so given in corroboration of his testimony, I cannot see upon what principle on such evidence separately considered, or otherwise, they could imply an agreement of the same nature, and to the same effect. No error I think, was committed in the ruling, in respect to the other exceptions stated in the case. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event. Present- MULLIN, P. J., SMITH and GILBERT, JJ. Judgment reversed, and new trial granted, costs to abide event. *Popham, 38. 3 496 60 202 3 496 87 583 3 496 42ap462 FOURTH DEPARTMENT, JANUARY TERM, 1875. JOEL P. MILLINER, APPELLANT, v. CHARLES LUCAS, Statements of vendor of personal property — inadmissible against his vendee- When judgment not reversed for improper admission of evidence. The statements of a vendor of personal property are inadmissible as against a party claiming such property from him, except in cases where such last named party really defends the action for the benefit of such vendor. A judgment will not be reversed for the admission of improper, irrelevant, immaterial or cumulative testimony, when abundant competent evidence was given to sustain it, and the court can see that it has occasioned no injury to the party complaining. APPEAL from a judgment of the County Court, reversing the judgment rendered by a justice. This action was brought to recover the price of a quantity of potatoes, sold and delivered to the defendant. The plaintiff claimed that the potatoes were his property, and the defendant claimed to have purchased them of one Slocum, who raised them on the plaintiff's land. The justice found for the plaintiff, and rendered judgment in his favor for $101.84, besides costs. The defendant appealed to the County Court, where the judgment was reversed upon the law. A. P. Butts, for the appellant. H. J. Thoras, for the respondent. E. DARWIN SMITH, J.: The judgment rendered by the justice upon the facts, was clearly warranted by the evidence, and could not be disturbed for any error in that particular. The only ground of error stated in the notice of appeal, which I think is sufficient to raise any valid ground for the review of the case, and upon which the judgment was doubtless reversed, is the fourth specification: that the justice erred in overruling the objection by the defendant's counsel to the question put by the plaintiff's counsel, asking the witness to go on and state what the arrange FOURTH DEPARTMENT, JANUARY TERM, 1875. ment was between plaintiff and Slocum, asked of plaintiff himself, and the same objections to the testimony of Allen Marshall, Hiram Doty and others, on the subject of Slocum's admission of what the arrangement was, etc. So far as the defendant's objection related to the testimony called for by the questions put to the witness, it was clearly not well founded. The question at issue was: in whom was the property in the potatoes? They were planted on the plaintiff's land by Slocum, and it was clearly proper for the plaintiff to show the contract between him and Slocum, in regard to the planting, cultivation and marketing of said potatoes. This was part of the res gestæ, and this was all that was called for by, or stated in answer to, the question put to the plaintiff. It was: What was the conversation or arrangement with Slocum about the potatoes, and how did the potatoes belong to you? The testimony of the witnesses Marshall and Doty, stand upon different grounds. They were asked whether they heard a conversation between plaintiff and Slocum, and they respectively, in answer, testified to a conversation between plaintiff and Slocum, some two weeks before the trial, in October, 1873, the previous conversation testified to by the plaintiff, being in the spring previous. This testimony is corroborative of the testimony so given. in respect to the contract by the plaintiff. This testimony, if it had been distinctly objected to as an admission or declaration of Slocum, the defendant's vendor, made long after the making of said contract with the plaintiff, should have been held inadmissible at the time, or stricken out afterward, if there had been any mistake or surprise in receiving it, unless its reception can be justified on the ground that the defendant was really defending the action in the interest, and for the benefit of Slocum, within the exception to the general rule stated and allowed in Paige v. Cagwin,* Gardner v. Barden, † Tousley v. Barry, ‡ Foster v. Beals. § The defendant really had no interest in the defense of the suit, for he had not paid for the potatoes. He had advanced Slocum, in all, twenty-five dollars on his lot of 600 or 800 bushels of potatoes, which he purchased at fifty cents a bushel. Slocum was, in this view, the real defendant in interest, and his admissions might 7 Hill, 375. † 34 N. Y., 433. * HUN-VOL. III. 16 N. Y., 500. § 21 N. Y., 250. 63 |