Hathaway v. Crocker

Shaw, C. J.

1. The first exception was to the competency of Stephen Rhoades, as a witness, on the ground of interest. But we are satisfied, on the facts stated in the bill.of exceptions, that Rhoades had no interest, through the Taunton Bank or otherwise, in the event of this suit; that the Taunton Bank could not be charged with costs should the plaintiffs fail in their action ; and therefore, as a stockholder in that bank, he can neither gain nor lose by the event of this suit.

2. The next exception was to the admission of Oakes Ames, to contradict a statement made by Charles Richmond, sen., a witness called by the defendant. Said Richmond testified that Charles Richmond, jr. was not a partner. He was asked, on cross-examination, whether he had not, on a former occasion, told Oakes Ames that said Richmond, jr. was a partner in the Iron Foundry. To this question Richmond, jr. objected, as incompetent to prove him to be a partner. It was then stated by the plaintiffs’ counsel, that the question was asked for the purpose of contradicting the witness. For that purpose it was permitted to be asked, and the witness replied that he had no recollection of it, but thought it very likely he had so stated to Ames, and gave his reasons therefor; and added that said Richmond, jr. never was a partner.

Now we are of opinion that the question was a proper one, for reasons wholly independent of the one assigned by the plain tiffs’ counsel; namely, that of a purpose to produce testimony to contradict him. The question, whether Richmond, jr. was a partner, was not only a question within the issue; it was the very question in issue. It was proper, therefore, to ask the witness if he had not stated otherwise.at some former time; because, if he had, it tended to diminish the credit due to his present testimony, by showing a want of integrity and veracity, or a defect of memory. This question was proper in itself, whether the party expected to call evidence to contradict him or not.

But the objection most relied on, we believe, will appear from the next clause in the bill of exceptions, which is thus stated : “ Afterwards, the plaintiff called said Oakes Ames, and inquired of him what, if any thing, C. Richmond, sen. had told him respecting C. Richmond, jr. being a partner in the Taunton Iron Foundry. The defendant objected to this question, on the ground that Richmond, the witness, had expressly admitted the fact, and therefore that the testimony would not contradict him.” But the objection was overruled, the testimony admitted, and the conversation alluded to was given in evidence. And this is the ground of the exception.

From thé manner in which the point is stated, we were at first a little misled as to the real question ; but on more consideration, we are of opinion that the decision was right in receiving Ames’s testimony. It is a well settled rule of evidence, that when a witness testifies to a material fact, within the issue, the adverse party may give evidence that the witness has, at some other time, or at various times, made a different statement of the fact. It tends to show that his present testimony is erroneous or false, as to such material fact. And such contra dictory statement may be proved by the witness himself, on cross-examination, or by other witnesses, or by both. The fact that he has formerly stated what he now denies, or the reverse, becomes itself a fact which may be proved by any competent evidence. The difference between the cases where other evidence may be called to contradict a witness, and where it cannot, is this: If the fact to which the contradiction applies is a material fact, within the issue, he may be contradicted by any evidence of other statement; but when it is not material, and not within the issue, contradicting evidence cannot be introduced. For, in cross-examination, an adverse party is usually allowed great latitude of inquiry, limited only by the sound discretion of the court, with a view to test the memory, the purity of principle, the skill, accuracy, and judgment of the witness; the consistency of his answers with each other, and with his present testimony; his life and habits, his feelings towards the parties respectively, and the like; to enable the jury to judge of the degree of confidence they may safely place in his testimony The rule is, that when the question is of this description, relative to a fact collateral to the issue, and not material to it, the answer of the witness must be taken as it is, and other evidence cannot be offered to contradict him. And the reason of this rule is obvious: The cross-examination, to the extent mentioned, is allowed only for the purpose of exhibiting the witness in his true light to the jury ; and when that is done, the whole purpose of cross-examination to matters out of the issue is accomplished. Besides ; if a different rule were adopted, if the rule stated were not strictly adhered to, the trial of a cause would branch out into collateral issues without limit. A witness, therefore, cannot be called to contradict what another witness has thus testified on cross-examination relative to a fact not material to the issue. 1 Stark. Ev. 134, 145.

Tried by these rules, we think the question was proper. The fact to which the witness, Richmond, sen. had testified, whethei Richmond, jr. was a partner, was the fact in issue. The plaintiff was then at liberty to contradict it — that is, to prove that the witness had made a different statement — by any competent evidence ; by the witness himself on cross-examination, or other witnesses. Had the fact been one not material to the issue, which had been stated by the witness on cross-examination, and to which he had been interrogated with a >iew to such contradiction, the objection would have been well founded. Commonwealth v. Buzzell, 16 Pick. 154. Tucker v. Welsh, 17 Mass. 160. Commonwealth v. Sacket, 22 Pick. 394. Brockett v Bartholomew, 6 Met. 399. Greenl. on Ev. §§ 446 -449 Nor is it any objection to this question to Arnes, that the witness admitted, on his cross-examination, that he had made a statement to Ames different from his testimony now given. The fact is, he did not admit it, but said he did not recollect it But he went on to add, that he might have so stated, and gave some reasons for it, which are not stated. Even if he had admitted the particular fact to Ames, he may have admitted it with such qualifications and excuses as to weaken the force and effect of the conflicting statement. But the true reason is the one already alluded to ; that this was not merely to contradict what Richmond had testified on cross-examination, and because he had so testified; but to contradict what he had stated in his direct examination on the material fact in issue; and this the plaintiffs might do, by any competent evidence, and without having first put the question to the witness himself.

3. One other point was taken at the trial. It was objected, that as this was a declaration on a joint contract, and as a verdict had been taken in favor of Crocker, one of the defendants, no judgment could be taken against the other two defendants, and that they were entitled to a judgment non obstante veredicto

Formerly, the rule undoubtedly was, that in assumpsit on a joint promise, if there was a verdict, on the general issue, in favor of one, it falsified the averment of a joint promise, and no judgment could be had against the others, though defaulted Tattle v. Cooper, 10 Pick. 281. But that rule was always adopted with this exception ; that when one defendant pleaded in his discharge some matter personal to himself, as a discharge under a bankrupt act or insolvent law, and upon such plea had a verdict, the other defendants were still liable. (See the cases cited and commented on, at length, in the above case, Tuttle v. Cooper.) The reason of the distinction is obvious, and it is this; that such a special personal defence does pot falsify the averment of an original joint promise, but, admitting it, avoids it by the averment of matter subsequent. And now, by the law, St. 1836, c. 273, discontinuing the use of special pleading, the general issue, with notice of the special matter of avoidance, must have the same effect.

But we are inclined to the opinion, that there is another good answer to the objection. By the rule of the common law, in an action against two or more on a joint contract, if the joint contract is not proved against all, the plaintiff must become nonsuit or discontinue, and fail in his action, although the proof was sufficient to maintain his action against the other defendant or defendants. This was probably regarded as a hardship, and often was so, in the case most likely to occur, where, in a suit against a partnership, some are sued as dormant partners, the proof fails as to some of them, but establishes an unquestionable right of action against the ostensible partners, and those who are proved to be dormant partners. The technical rule therefore often worked injustice. Soon after the publication of Tuttle v. Cooper, which was published in 1833, the legislature passed an act which provided, that in such case the defendant not liable should be discharged with his costs, and that the plaintiff might proceed against the other defendant or defendants. St. 1834, c. 189. The same principle, with some slight modifications in regard to its practical application, was adopted and confirmed by the Rev. Sts. c. 100, § 7. And it seems to us, that within the provisions of this statute, the plaintiffs might discontinue against Crocker, and amend their declaration conformably to the truth of the case, if it has not already been done, so as to take judgment against the other two defendants.

Exceptions overruled.