
    Lemuel B. Phelps v. Newton Smith.
    Motion for leave to file a petition in error.
    The original action was to recover the price and value-of milk sold and delivered. The answer alleges that the milk was diluted with water, and that, by the contract under which it was delivered, the milk was to be pure. The reply denied the adulteration of the milk. On the trial of this* issue, the defendant offered to prove that after the delivery of the milk the plaintiff was seen diluting other milk, which he was preparing to deliver under the same pon tract. This evidence was excluded, and it is now claimed that the court erred in its exclusion.
    
      Lee § Kellogg, for the motion :
    The evidence excluded by the court below would have proved a violation of the contract upon which the action was founded, and thereby tended to prove a similar previous violation of said contract.
    
      S. A. Northway and Id. B. Woodbury, contra:
    1. Proof of one violation of the contract, not pleaded, does not tend to establish a previous violation. 44 N. H. 419; 6 Cush. 398; 1 Greenl. Ev., sec. 448.
    
      2. Where the motive which controls a party in the commission of a fraud is sought to be shown, there other similar fraudulent transactions may be shown, but it is only for the purpose of showing the motive, and not for the purpose of proving the commission of the fraudulent act pleaded. In this ease no motive is involved.
   By the Court.

We see no error in this. Subsequent similar acts of a party are competent evidence to show the intention or animus with which he committed the act charged, but can not be given in evidence to prove the act itself.

Leave refused.  