Jackson v. Litch

1. Cross-examination must be confined to the matters stated in the examination in chief. 2. A party cannot lead out new matter constituting his own case by the cross-examination of his adversary’s witness. 3. Allowing new matter to be brought out on cross-examination is generally considered as within the sound discretion of the court below. 4. In order to reverse for this cause, it must be an extreme case, in which the discretion has been abused and in which it is apparent the party has been injured. 5. Where a witness has stated a fact, he may be asked by the other party to detail all the circumstances within his knowledge which qualify it, though they may be new matter and form part of his own ease. 6. By a written agreement, afterwards abandoned, J. was to pay L. $3250 for certain privileges on L.’s dam, and L. was to repair the dam ; $1250 of the sum to be paid “ as the work progressed on the dam.” A witness who drew the agreement might prove that $2000 were for the privileges and the balance for repairing the dam. 7. L. by writing granted to J. certain privileges on his land and dam, L. to repair the dam; afterwards it was agreed by parol that L. instead should build a new dam for which J. should pay half the cost. Held, that this latter agreement was not within the Statute of Frauds.

October 22d 1869. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ. Error to the Court of Common Pleas of Jefferson county: No. 81, to October and November Term 1869. This was an action of assumpsit brought, November 15th 1866, by Thomas K. Litch against Jake Hill, A. Jackson, A. F. Baum and John Carrier, partners, trading as Jackson, Carrier & Co. The declaration was for half the price of a bracket dam on the North Pork creek, in Jefferson county, which it had been agreed should be built by the plaintiff at the joint expense of plaintiff and defendants. The declaration contained also the common counts. The plaintiff (with one Miller who afterwards, November 6th 1857, conveyed to plaintiff his interest) owned a saw-mill and timber .lands on the North Fork creek, a highway in Jefferson county, on which was a dam known as the “ Big Ham,” designed to “bracket” their lumber to their mill. At the same time Hollenback, Coryell & Co. owned a saw-mill on the same stream, and timber lands adjoining the upper lands of Litch & Co. On the 25th of January 1856 Litch & Co. entered into an agreement with Hollenback, Coryell & Co., by which Hollenback & Co. were admitted to equal privileges in the “Big Dam,” and were to be allowed to pass oyer and place their timber on Litch’s land, on the bank of North Fork creek; the privileges granted not to interfere with Litch’s lumbering operations. In consideration, Hollenback & Co. agreed to pay Litch $1250, as in the agreement was specified, and Hollenback & Co. were to allow Litch to use their landings for lumbering purposes, under the same restrictions imposed on Hollenback & Co. with respect to Litch’s landings; the parties to keep up the “Big Dam” at joint expense. It was further agreed that if Hollenback & Co. should sell their lumbering establishment, Litch might resume the privileges on refunding the $1250, and the agreement was then to be void. On the agreement were endorsed receipts for the payment of the $1250 and its interest. On the 24th of December 1863 Hollenback & Co. sold all their timber lands, mills, &c., to the defendants, and agreed to assign to them the agreement with Litch “ for the privilege of landing on the creek on his lands and Big Dam.” Hollenback & Co., on the 24th of December 1863, assigned the agreement with Litch by an endorsement on it. On the 8th of March 1864 Litch, by writing, gave notice to the defendants that he wished to resume the privileges under the agreement of 1856, “ and also to confer with (them) as to repairing the dam.” On the 10th of August 1864 Litch entered into an agreement with the defendants that he would repair the “Big Dam,” and after its repair allow the defendants to use it “ for the purpose of bracketing their logs and timber down the stream, Litch reserving the right to use the dam for all other purposes,” both parties'to be “ equally bound” to maintain the dam in good repair; Litch to put the “ bottom in the dam this fall and complete it next season, and insure it for one year against ordinary freshets.” Litch further stipulated that the defendants might pass over and pile logs on his land on the creek; Litch to have a similar right on the defendants’ land. In consideration the defendants were to pay Litch $3250, viz., $500 in thirty days, $500 on April 1st, and $500 on August 10th 1865, $500 on August 10th 1866, and “$1250 as the work progresses on the dam;” no assignment of the agreement to be made by the defendants until they shall have paid to Litch the $3250. On this agreement' was endorsed a receipt, September 21st 1864, for $500, signed “Thos. K. Litch, per Robert Stewart;” and another, July 31st 1865, for $1500, signed “ Thos. K. Litch, per Darling.” On the trial, February 16th 1869, before Campbell, P. J., the plaintiff gave evidence by Robert Stewart that “ after the writing was abandoned” Litch told him to go on and rebuild the old dam; in witness’s judgment it was not worth repairing, and he so told the parties, plaintiff and defendants. Jackson, one of the defendants, said a new dam would be better, and all agreed to go on and build a new dam, and witness was to build it; the plaintiff was to pay one half and the defendants the other half. The dam cost $4720.74, which the plaintiff paid. There was other evidence of the agreement^ the defendants that a new dam should be built instead of repairing the old one, and that they would pay half the cost. The defendants gave evidence tending to show that there was no agreement to build the new dam, and that the claim for rebuilding was too much. Stewart and Darling respectively testified for the defendants that they had authority from the plaintiff to receive the money for which the receipts endorsed on the agreement were given. On cross-examination they testified, under objection by the defendants and exception, that these payments were received for the privileges granted by the article, and not for building the new dam. Darling, in rebuttal, under objection by the defendants and exception, testified: “I drew that agreement 10th August 1864;‘ $2000 consideration, applicable to grant of landing and other privileges, and the balance was for repairing the dam; that was what the contract was; explained to me.” The following are points submitted by the defendants and the answers, viz.:— 4. “ From the evidence the contract for the new dam would be sucb an interest in land as would be subject to the provision of the Statute of Frauds and Perjuries. That it has not been sufficiently executed to take it out of the provisions thereof, and the plaintiff not having tendered any conveyance before bringing suit to enforce the contract, he is not entitled to recover.” Answer: “ If there was a simple contract resting in parol, by which the defendants agreed to pay half the expense of erecting this dam, it is pot within the Statute of Frauds and Perjuries, that we can see, and we answer the point in the negative.” 5. “ The article of the 10th of August 1864 is still of binding force, and the defendants would be entitled to a set-off thereon for whatever amount it would cost to repair the old dam in such a manner as to insure it for one year, if alleged parol contract is found to be binding on the defendants.” Answer: “ We answer this point, handed us just before charging the jury, that we can’t see that the article is rescinded, or at all affected by the contract alleged by plaintiffs, unless that contract is a modification of the covenant in the article, and in that event plaintiff cannot recover. Being in full force, the defendants would be entitled to a set-off for all the damages they have sustained, if any, in consequence of the dam not being repaired as provided in the article. Thus we answer this point in the affirmative.” 6. “ T. K. Litch having given notice of his desire to rescind the contract with Hollenbaclc, Coryell & Co., and having entered into a new contract with these defendants for a different consideration under the terms of the contract with Hollenbaclc, Coryell & Co., the last-mentioned contract was rescinded, and T. K. Litch would be liable to refund the consideration thereof to these defendants as assignees of Hollenback, Coryell & Co.” This point was filed and endorsed as follows:— “ Offered after counsel for plaintiff had gone to the jury, the court declining to answer within point.” The verdict was for the plaintiff for $2360.35. The defendants having removed the case to the Supreme Court, assigned for error: — the admission of the evidence in the bills of exceptions; the answers to their 4th and 5th points; and refusing to answer their 6th point.