Overall v. Bezeau

Cooley, C. J.

The action in the court below was upon a promissory note, the consideration of which appears to have been a stock of spirituous liquors. ■ The defendant proposed to show that the sale was illegal and the note consequently void, by showing that the plaintiff had not paid his tax to the State as a wholesale dealer, and, was therefore not at liberty to make such a sale. To give the evidence proposed any force, on the defendant’s own view of the case, it should first have appeared that the sale was one which only a wholesale dealer could lawfully make. Such was not the case here. Plaintiff owned a quantity of liquors, and he sold them in gross; he had certain property and he sold it in one lot. This did not make him a dealer; a dealer is one who makes successive sales as a business. But this plaintiff by the sale he made was indicating as distinctly as possible his intention not to be a dealer, either by wholesale or retail. The court, we think, committed no error in excluding the showing.

The only other error requiring notice has caused us some embarrassment. It arises upon the testimony of William Preston, a witness for the defendant, who, as the bill of exceptions states, “testified in substance that there was nothing due on the note; that the witness purchased for the defendant from the plaintiff his stock when closing out his (plaintiff’s) saloon; that plaintiff told witness the prices and amount in each barrel and offered to show the bills. Witness replied in substance that he did not care to see them, and that it would be unnecessary; that he, witness, would pay a certain amount, between ten hundred and forty and ten hundred and fifty dollars for the stuff. Witness gave plaintiff seven hundred dollars in promissory notes; one payable in January, 187?, of $233, one payable in May, 1877, of like amount, and one payable in September, 187?, between the 5th and 7th; that he paid $200 in money, and *508 canceled a debt that the plaintiff owed of between $140 and •$160; that the plaintiff made representations to witness as to the quality and quantity of the liquors and told him if there was any difference that witness and plaintiff could settle it; that after getting the property home a discrepancy .was found that would amount to about $300. These notes -were made so ás not to go out of plaintiff’s hands if there should be any discrepancy as to his representations. Wit-mess further testified that he did not get value received to ••the amount of about $300.”

This evidence, on motion of the plaintiff, was stricken • out for indefiniteness and uncertainty. The defendant, •when this motion was heard, does, not appear to have made • any proposition to make the evidence more definite, and the -conclusion is that he proposed to urge upon the court that by this evidence he had established a defense to the amount •claimed. And this is what he insists upon in this court; •or at least, that the evidence was sufficient if believed, to .justify conclusions in his favor. The evidence, if so it can •be called, went first to the agreement to make allowances for defects or deficiencies in quality or quantity, and second to the fact that defects or deficiencies existed. But what were these? Were any of the liquors not of the quality represented, and if so, which of them, and what was the nature and extent of the disparity? Or was there a deficiency in quantity in some one or more, and if so, in which of them and to what extent? Or was the witness in his own mind estimating discrepancies of both descriptions, and calculating .according to some standard he does not attempt to give, .that the liquors fell short some $300 of the representations made? What inference could the court draw from the evidence in favor of defendant from premises so vague? Certainly not that the quantity fell short, for the witness does not so testify. But it is equally impossible to conclude that the quality was not as promised, for there is no evidence to •that effect. On the whole we are inclined to think the .judge was right in his view that the evidence was too vague •and uncertain to warrant any safe inference; and while we ■can see no reason why it should have been stricken out, yet *509 tlie party was no more wronged by the judge dealing with it in that manner than he would have been by his disregarding it in making up his judgment. And as the judge was trying the case without a jury, that was what he must have done had the motion not been made. Suppose this-defendant had been plaintiff: in a suit to recover the amount here claimed, and his witness had testified as follows: “ The' defendant to my knowledge, owes the plaintiff three hundred dollars, either for deficiencies in the quantity of goods-bought of him, or for defects in their quality, or for both”' —the insufficiency of such evidence as a basis of recovery is; manifest. The witness is undertaking to give conclusions, from facts which he does not disclose; but the court must, have facts and draw its own conclusions.

The judgment must be affirmed with costs.

Campbell and Grates, JJ., concurred. Marston, J., did not sit in this case.