Lewis v. Hodgdon

The opinion of the Court was by

Shepley J.

-This Court has decided that one party to a negotiable note may upon request of another party to it maintain an action for his benefit. Bragg v. Greenleaf, 14 Maine R. 395. The written consent of the indorsee pending the trial was oquivalent to a ratification of all the previous proceedings in the prosecution of the suit.

The witness, Plummer, having been the depositary of the papers, and having assumed the execution of the trust, was responsible to any one, who should suffer by his violation of it. If through a breach of trust he had been instrumental in inducing Mr. Evans to discharge a debt by taking a note, which he knew could not be collected, he would be legally liable to him for the injury; and equally liable to the defendant, if he had paid the note. Being responsible to both parties, his interest vVas balanced, and he was a competent witness. He says, that he directed the suit, and that it is prosecuted for his benefit. If this statement had not been qualified or explained, he would appear to be interested in the event of the suit; but he afterwards explained, that he “ thought it was for his benefit because it would relieve him from a moral obligation he felt under to Mr. Evans.”

It does not appear from the whole of his statements, as explained, that the suit was prosecuted for his benefit by any agreement between the plaintiff, or Mr. Evans, and himself, or that he was responsible for the costs.

That he expected it would relievo him from his responsibility to Mr. Evans, and that he advised the suit for that reason, appears to present the true position in which he was placed according to his own account of it. And his liability would not thereby be at all changed. If the plaintiff should recover he will not be relieved, for the verdict in this case could not be evidence in a suit brought against him by the defendant, who might upon proof of his violation of any trust-assumed at the time of making the last or former papers, recover for the injury.

The note was transferred for a valuable consideration before it became payable; and the objection, that it was received for a preexisting debt was considered, and the reasons for the difference between the decisions in New-York and in this State were explained in the case of Homes v. Smyth, 16 Maine Rep. 177. If the testimony should satisfy the jury, that when the defendant on the fourth of January, 1832, received his deed, he dispensed with the condition upon which the note was deposited, and that he then agreed to pay it as part consideration for the same, knowing it to be in the hands of Mr. Evans, this would be equivalent to a consent to all the prior proceedings with a full knowledge of them; and it would be sufficient to prevent his introducing claims in set-off arising after that time.

It can scarcely be said to have been a fact seriously contested, that this note, with others, was left with Plummer to be delivered only by the consent of both parties. For the Judge instructed the jury “ that if after the note had been left in deposit with Plummer there was no new contract by which it was agreed, this note should be in force, this action being brought in the name of the original payee could not be sustained.” The material subject for inquiry then was, whether there existed any such new contract; and the right of the parties were dependent upon the decision of that question. It is therefore apparent, that the cross-examination of the witness might have been safely closed, after he had stated the transactions prior to the fourth of January, 1832. And it would then have become necessary for the plaintiff to examine into the transactions of that day to make his title good.

Such a course would have exhibited the testimony respecting those transactions as the testimony of the plaintiff, and liable to be discredited by the defendant’s proving, that the witness had made contradictory statements. And the result would have been the same, if the Euglish, and perhaps the proper practice of examining had been adopted, which requires the party calling the witness to. examine him in relation to all matters material to the issue before the cross-examination, and to confine himself on the re-examination to the matter of the cross-examination. 1 Stark. Ev. 179, (Met. I. & G. Ed.) Is there any such rule of evidence as deprives 'the defendant of the right .to discredit the witness, because on the cross-examination he permitted him to proceed and relate the whole of the transactions between the parties ? It is true that if he examines to a collateral fact, he must take the answer, and cannot contradict it. Spenceley v. De Willot, 7 East, 108; Rex v. Watson, 2 Stark. R. 116. But this rule does not extend to the cross-examination upon facts material to the issue. And he may inquire' in relation to other facts, material to the issue, than those elicited by the party calling the witness, and if the answers are not satisfactory, he may by any legal proof contradict or discredit them. 1 Stark. Ev. 164, (Met. I. & G. Ed.) It may bé said, that in this case the defendant is obliged to rely upon the witness to make out the defence by proving the deposit of the note ; and that if he discredits him on other material facts, the rule falsus in uno, falsus in on'inibus will apply, and the whole of his‘ testimony must be thrown out. But although that rule may apply, it is not of such binding effect as to authorize a court to instruct the jury that they cannot believe one part of his statement and disbelieve another. While that is" the presumption of the law, cases often occur, in which jurors are constrained to yield entire credit to certain stateménts, and to disbelieve others. Tbe case of Bradley v. Ricardo, 8 Bing. 57, presents an application of this role. It was an action against a sheriff for a false return of nulla bona upon an execution. The plaintiff called the sheriff’s officer to prove the receipt of the execution, and upon the cross-examination ho testified, that no goods of the debtor could be found. The plaintiff then proceeded to prove by other witnesses, that the debtor had goods liable to be seized, but the presiding Judge being of opinion, that if he contradicted his own witness oh that part of the case, it would' destroy his testimony relating tó the receipt of the execution, the plaintiff was norisuited. A rule was obtained to set aside the nonsuit which was made absolute. Tindal C. J. says, “ it has been urged as an' objection, that this would bo giving credit to the witness on one point after he has been discredited on another, but difficulties of the same kind occur in- every case, where a jury has to decide on conflicting testimony.”

This decides all the points that, it is perceived, will be useful upon a new trial.

Exceptions sustained ánd a new trial granted.