Snow v. Nowlin

Marston, G. J.

The first error assigned is that the plaintiff was not permitted on cross-examination to answer the question put to him whether he did not try to sell or trade the Kansas property after his return from there, to Charles L. Toner. While it is true that in cases like the present a wide latitude has usually been allowed in the cross-examination of witnesses, and that it would not have been error for the court to have permitted the question to have been asked and answered, yet as this record presents the question, we cannot say that the plaintiff in error was prejudiced by the ruling. The offer, if made, may have been under such circumstances as to have afforded no tendency to show a ratification or satisfaction with the trade, made after full knowledge of the fraud, if any, was committed. The plaintiff may have been willing to sustain even a heavy loss if he could get rid of the property. He may have preferred this to a vindication of his rights in court. In answer to the previous question the witness had said he was not acquainted with Toner, although he thought he had seen such a man. In view of this fact and of the doubtful tendency of such evidence, even if we may assume an *386 affirmative answer would have been given, we are of opinion that, in connection with the question when objected to, some definite offer as to what counsel proposed to prove should have been made, or the question been followed by others showing the materiality of the proposed testimony.

The witness having testified that he had offered the defendant $200 to trade back, he was asked on cross-examination if he had the requisite amount of money under such an offer, some $2500, if accepted for such purpose. This was properly excluded. He may not have had a dollar, and yet have been able to raise and pay the requisite amount. The good faith of an offer cannot always, be tested in this way. Such must be the general rule, and where there are exceptions the party desiring the benefit thereof must see that he brings himself within them.

In reference to the exclusion of the depositions because the cross-interrogatories had not been answered, while we do not say the ruling was correct, yet we cannot say it was wrong for this reason. There is nothing apparent in this record from which we can say that any material testimony was excluded. If the depositions as returned and rejected had been made a part of the bill of exceptions so that we could have seen their materiality and that their rejection must have injured the party who offered them, we could then pass upon this question. As the case stands we cannot say that any error was committed.

The remaining alleged errors which we deem it necessary to notice relate to the questions asked relative to the value of the Dearborn lands and the allowance of interest in considering the question of damages. The value of the Dearborn lands we are of opinion was a matter of no importance in this case. If a fraud was committed, no matter what the consideration passing from the plaintiff may have been, he was entitled to what he had bargained for; nor do we think the value *387 of the Dearborn land would have any fair tendency to show that the representations were not made as claimed.

As to the question of interest: in cases of contract and many cases of tort the rule is well settled in this State that interest may be allowed by way of damages. The plaintiff is allowed full compensation for the injury he has sustained. He is to be placed as nearly as can be in the position he would have occupied if the reprerentations made had been true. The difference in value will not accomplish this unless interest is added thereto. We are of opinion that there was no error in the court instructing the jury as was done in reference to the allowance of interest.

Judgment affirmed with costs.

The other Justices concurred.