This action was brought to recover possession of twelve bales of ¡Sumatra tobacco, the possession of which was alleged to have been ■obtained by the defendants’ assignor by false and fraudulent representations as to his solvency. The answer was a denial of the fraud.
The plaintiffs, in support of the plaintiffs’ claim, proved the sale •of the goods in September, 1885, offered evidence tending to show vthe making of some representations by the purchaser as to his ¡solvency, to the seller of the goods and to Dun’s Mercantile Agency, .and the falsity of such representations if made and proved; the making in December, 1885, of a general assignment for the benefit ■of creditors, by the purchaser to the defendants; and offered in evidence the schedules of assets and liabilities filed pursuant to law, ¡and a confession of judgment made by the purchaser to his wife, ¡and rested.
A motion was made to dismiss the complaint and denied. The ■defendants then put upon the stand, as a witness in their behalf, Mr. Moeller, the purchaser of the goods, who admitted the purchase but denied making the representations attempted to be proved by the plaintiffs. Upon cross-examination he denied having made, in August or September, 1885, any statements to certain gentlemen named from whom he had purchased goods. After offering some .additional proof the defendants rested. Thereupon the plaintiffs put ■upon the stand the creditors to whom it was claimed the purchaser .had made statements, and to whom his attention has been called ■upon his cross-examination, and offered to prove that he had also made statements to them as to his condition, for the purpose of *3contradicting him, which evidence - was objected to upon the ground, among others, that it was not in rebuttal, which objection was sustained, and as to this ruling the plaintiffs duly excepted.
The jury having found a verdict for the defendants, and a motion having been made for a new trial and denied, from the judgment and order thereupon entered the plaintiffs have taken this appeal.
The main ground for a reversal of the judgment rests upon the exceptions taken to the ruling above mentioned. There is no doubt but that the plaintiffs, in an action of this character, has the right to prove contemporaneous frauds for the purpose of showing the intent with which the purchaser made the representations- to the seller of the goods in question; and that the evidence offered would have been entirely competent for that purpose had it been offered as part of the plaintiffs’ original case, hut such evidence was not in rebuttal, nor did it tend to impeach the purchaser any more than, in any case, any evidence upon the main issue at variance with the evidence of a witness may be said to tend to impeach his testimony.
The issue of fraudulent intent was the one upon which this evidence was relevant, and it was only upon this issue that it could be introduced. If this is not so, then the evidence was collateral, and, in respect thereto, the plaintiffs were bound by the answer of the witness. Being relevant testimony, 'applicable- to one of the issues which the plaintiffs were compelled to establish by affirmative evidence before they rested their case, they were bound, before resting, to introduce all their evidence upon this subject, and not merely make out a prima, facie case and then introduce additional evidence upon the issue after the defendants have rested.
The court might, in its'discretion, have admitted the evidence, and it probably would not have been error, of which the defendants could take advantage, to have done so, but the court believed that the rule should be adhered to, and in this we think .that it was clearly right. But it is claimed that the evidence was offered for the distinct purpose of impeaching Moeller’s credit as a witness, and that as the questions asked of Moeller were not collateral, therefore the plaintiffs • were not bound by his answer. The evidence was clearly not collateral to the main issue, and it is because of this very fact that the plaintiffs were bound to introduce all their evidence in the first instance. The declarations of Moeller as to his condition, made with intent to *4induce credit, were evidence in chief and could have been offered even if Moeller had never been examined as a witness or questioned in respect thereto.
The cases cited by the learned counsel for the appellants in respect to the method of procedure to be taken, where it is desired to contradict a -witness by proving declarations which are inconsistent with his testimony and which he denies having made, all relate to declarations which could not have been offered in evidence until the person making the declarations had been put upon the stand and had given evidence upon the issues, which declarations tended to contradict or weaken the evidence given, and therefore have no bearing upon those cases where the declarations are admissible as evidence in chief entirely independent of the fact as to whether the ’declarator has been or wall be a witness. We think, therefore, that the question of reopening the case to permit this evidence to be introduced was within the direction of the trial judge, and we see no reason for interfering with it. Neither can we interfere with the verdict of the jury, upon the ground that it was against the evidence. There was charge and denial, the jury had the witnesses before them, and if they chose to believe the defendants they had the right to do so and we cannot say that they were manifestly wrong.
The judgment and order appealed from should be affirmed, ivith costs.
Beady, J., concurred.