Submitted on motion to strike bill of exceptions September 28, 1926 Submitted on briefs January 25, 1928
Motion denied November 9, 1926 Modified February 14, 1928
From Multnomah: ASHBY C. DICKSON, Judge.
For appellant there was a brief over the names of Mr. T.B. Handley and Mr. F.S. Sever.
For respondent there was a brief over the name of Mr. Will H. Masters.
This is an action upon a parol contract wherein plaintiff sought judgment for $3,803 for commissions upon the sale of capital stock in defendant corporation. The answer denied the alleged contract and denied that plaintiff made any sales. Only three assignments of error are argued in appellant's brief. One charges that the court erred in admitting over the objections of defendant the depositions of four witnesses. The other alleges error in the instructions given to the jury. The evidence showed that one E.V. Vachon, plaintiff's assignor, made several sales of shares of the capital stock of defendant; in all these sales the entire, or a very substantial portion, of the purchase price was discharged by accepting other securities. The defendant contended that these sales were not made in its behalf; that the stock thus disposed of was the property of one O.H. Klatt, its vice-president, and that Vachon made the sales as Klatt's agent under an agreement with him. It admitted in the course of the evidence that it had hired the plaintiff to sell stock, but claimed that the authority conferred permitted him to accept as payment, money only. Upon this phase of the case the court, after reviewing for the jury the pleadings, instructed the jury.
"You are instructed that before plaintiff can recover in this action he must establish to your satisfaction by a preponderance of the evidence that E.V. Vachon was employed to sell its stock and that he did sell the stock of defendant according to the terms and understanding between E.V. Vachon and the defendant; * * You are instructed that if you find that Vachon was employed by the defendant, The American Toll Bridge Company, to sell the stock of said company at a commission of fifteen per cent of the sale price, your verdict should be for the plaintiff, — if you find that the defendant, The American Toll Bridge Company, accepted bonds or other securities from the purchasers of its stock, in the place of cash, and issued to the purchasers the stock of said defendant company. And I further instruct you, as a matter of law, that if the defendant, The American Toll Bridge Company, did accept bonds and other securities, and issued its stock to the purchasers thereof, that the defendant, The American Toll Bridge Company, thereby accepted and confirmed the sale, and thereupon the commission for the sale was earned.
"Now, ladies and gentlemen, you have heard the testimony offered by and on behalf of defendant in which it is claimed that all the stock sold by Mr. Vachon, in the defendant, American Toll Bridge Company, was the personal property of Mr. Klatt; and further that Mr. Vachon was not employed by defendant to sell its stock.
"I, therefore, instruct you that after a careful consideration and comparison of all the testimony, you arrive at the conclusion that Mr. Vachon was not employed by defendant, and that the stock sold by Mr. Vachon in the defendant, American Toll Bridge Company, was the personal property of Mr. Klatt, then your deliberations would be at an end and your verdict should be for the defendant;
"Or, if you find that the plaintiff has not sustained the burden of proof and satisfied you by a preponderance of the evidence as I have already pointed out to you in these instructions, then your verdict must be for the defendant."
The verdict and judgment were for the plaintiff. Defendant now contends that these instructions did not sufficiently submit its theory to the jury; that they warranted a finding of only one or the other of two possible sets of facts, that is: (a) a contract between Vachon and Klatt, or (b) a contract between Vachon and defendant, and left out of consideration entirely, its theory that Vachon had a contract with both the defendant and Klatt, wherein he could sell, for cash, stock on behalf of the defendant, and dispose of stock on behalf of Klatt by taking in payment, securities. Defendant requested no instructions; its only exception to the instructions was the following:
"The defendant desires an exception to that portion of the court's instructions as to the effect of acceptance of securities by the American Toll Bridge Company; said instructions not being in conformity with the evidence adduced, or reasonable in its application to such evidence. The Court: Exception allowed."
This exception wholly failed to point out to the trial court the matter presented to us, that is the theory of defendant; we do not believe that anyone would understand from the exception stated that the defendant was dissatisfied with the court's statement of the respective contentions of the parties.
In 3 C.J., Appeal and Error, Section 639, we find:
"When an objection is made, the trial court and opposing counsel are entitled to know the ground on which it is based, so that the court may make its ruling understandingly, and so that the objection may be obviated, if possible; and therefore, as a general rule, objections, whether made by motion or otherwise, and whether to the pleadings, to the evidence, to the instructions or failure to instruct, * * or to other matters, must, in order to preserve questions for review, be specific and point out the ground or grounds relied upon, and a mere general objection is not sufficient. The appellate court will not review a question not raised in the court below with sufficient definiteness to make it clear that there was no misunderstanding of the point ruled on. And, where a wrong reason is assigned for an objection, it is the same as if there was no objection at all."
In 1 Randall's Instructions to Juries, Section 519, we find:
"While in some jurisdictions a general exception to the charge of the court is authorized, and is sufficient without pointing out in detail the specific instructions challenged, the practice of taking general and obscure exceptions to the charge at the moment, in order to cover the case and enable counsel, on subsequent critical examination, to raise points which have never been suggested at all to the mind of the trial judge, is objectionable on many grounds, and the general rule in most jurisdictions is that an exception to the instructions as an entirety is not tenable, but that, on the contrary, exceptions to the charge of the court must point out some definite or specific defect, this rule requiring, in some jurisdictions, that the grounds of the objection be stated, and ordinarily the particular part of the charge of which complaint is made should be set out or pointed out, and it is held that such rule, being mainly established for the protection of the prevailing party and being in furtherance of justice, cannot be abrogated by the practice of any trial court."
"One of the purposes of such rule being to give the court an opportunity, if convinced of error in its charge, to correct it, the test of the sufficiency of an exception is whether it fairly directs the attention of the court to the claimed error. An objection to a charge should be as definite as an assignment of error to it is required to be."
This court has held to similar effect; thus in Reimers v. Pierson, 58 Or. 86 ( 113 P. 436) we said:
"It is the duty of counsel complaining of the instructions of a court to point out specifically the language in the charge of which he complains so that the court may have an opportunity of correcting the same, it should be deemed erroneous on second thought. * *"
This exception presents no error.
The testimony of four of the plaintiff's witnesses was presented by deposition; the depositions were taken on questions agreed upon beforehand. When plaintiff proposed to read the questions and answers to the jury, defendant's counsel stated: "The defendant objects to the introduction or receipt of the depositions of G.S. Butler as incompetent, irrelevant and immaterial and not tending to support any allegation in the complaint."
Some colloquy occurred between the court and the counsel as to the contents of the deposition, but the objection was not amplified. We have carefully read all the questions in the depositions and find that all, with one exception, are competent, relevant and material: the subject matter they refer to, was in support of plaintiff's case. One or two of the witnesses in making answer wandered away from the questions somewhat, and perhaps made statements based upon hearsay information, but no motions to strike the extraneous remarks was made by defendant. The objection goes to the question but not the answer. When to a proper question the witness gives an improper answer, the approved practice is to move to strike the answer: Wigmore on Ev. (2 ed.), § 18; Marinoni v. State, 15 Ariz. 94 ( 136 P. 626); Hodges v. Wilson, 165 N.C. 323 ( 81 S.E. 340). In the interchange of remarks that occurred when the depositions were offered, defendant's counsel referring to his objection, which we have previously quoted, stated:
"I want that to apply to every question and answer.
"The Court: He wants an objection to every question and each answer, in each of the other objections, on the same grounds that the ruling of the Court would be the same, and an exception allowed to each."
Opposing counsel replied: "For the Court's protection, in the case the Court thinks there is some question in here that is objectionable I would like the Court to pass on that.
"The Court: I will pass on that if the question is raised."
But we do not understand that a party by offering a general objection to a mass of questions, and stating he wants his objections to go to the answers as well as the questions, can thereafter sit supinely by, feeling assured that he has run an effective dragnet through the record which will save for the appellate court as ground for reversal all the various infractions of the rules of evidence that may be thereafter committed. If this can be done as to four depositions, it can be done as to all the evidence.
Where the attorney has both answers and questions before him, he can more readily determine whether any given statement is unsatisfactory to him, and if a rule of evidence was violated he can point out specifically which one. This difference in convenience has been recognized by the courts: Steer v. Little, 44 N.H. 613. Furthermore, the general objection is not a favorite of the courts: State v. Von Klein, 71 Or. 159 ( 142 P. 549, Ann. Cas. 1916C, 1054).
In Ellis v. Abbott, 69 Or. 234 ( 138 P. 488), plaintiff offered the testimony of two witnesses by their depositions. The defendant objected on the same ground suggested by the defendant in this case, that is, the general objection, incompetent, irrelevant and immaterial. Upon appeal he argued that the matter stated by the witnesses in their depositions was inadmissible because no proof had been offered as to the inability of the witnesses to be present at the trial. This court held that the latter objection was not available to the defendant, due to the fact that his objection did not suggest it to the trial court. Thus this court said:
"In the examination of a cause upon appeal, the inquiry is limited to the identical question considered by the trial court. Any other course of procedure would not be a review. * * The error insisted upon was not presented in such manner as to notify the court and adverse counsel of the real question now urged * * Such being the case, the error complained of is unavailing."
In Sigafus v. Porter, 84 Fed. 430, Mr. Justice LACOMBE states the rule thus:
"The objection was not fairly called to the attention of the judge who tried the cause. The stock objection `incompetent, irrelevant, and immaterial' covers a multitude of sins. There is hardly an objectionable question but what can be classified under one or other of these heads. Sometimes the real nature of the objection is so plain that the general phrase will be quite sufficient to indicate it; indeed, it may be quite apparent without any statement of the grounds of objection at all. But there are many other objections which rest upon some particular theory of the case, or upon some single fact in proof, which a judge may readily forget in the course of a long and intricate trial. It is only fair in such cases to require counsel to state clearly to the trial judge on what ground it is that they object. Certainly it is not fair to allow such a general dragnet as `incompetent, irrelevant, and immaterial' to be cast over every bit of evidence in the case which counsel would like to keep out, and then to permit counsel, upon careful analysis of the printed narrative of the trial, to formulate some specification of error not thought of at the time, and which, if seasonably called to the Court's attention, might have been avoided, or corrected."
In New York etc. Co. v. Blair, 79 Fed. 896, the court speaking of the general objection interposed to a question in that case referred to it as "a specimen of a practice not to be encouraged, which is to object with a rattle of words that conceal the real nature of an objection capable of being removed on the spot, and to announce its true character for the first time in the appellate court."
In the case before us, only one of a great many questions contained in the four depositions was objectionable; it called for hearsay evidence of a type peculiarly inadmissible, because it sought to prove one's agency by the latter's declarations; this question was;
"Q. During these negotiations did you ever have any conversation with any other person who was introduced to you by Mr. Vachon, if so, state his name, and the representations which he made to you as to his connection with defendant? A. Now then there was a fellow came out with him the day that he made this deal and his name was Lafer, or some such a name as that. He was represented to me as just an agent, — a general agent for the American Toll Bridge Company, or general manager, or something like that, and he never said one more word, — he just sat there and overheard the conversation, he was there, and he was connected up in some manner with the American Toll Bridge Company, but as to his part in it I don't know any more than he was general manager, or something like that. I don't think he was an agent for them at all, that is in selling stuff."
It will be observed from the answer that the deponent said nothing as to the third person's declarations. The question called for hearsay testimony but the witness gave none. Hence no harm was done the defendant. We find no error in the court's ruling as to the depositions.
The third assignment of error complains that the court allowed interest from the date of the breach when none was prayed for; but the plaintiff filed a remittitur of the interest and consents that judgment should be entered only for the principal. It follows therefrom that the plaintiff should have judgment for the principal without interest from breach, but with interest from the date of the judgment. With this modification the judgment of the lower court is affirmed.