Swamscot Machine Co. v. Walker

Eastman, J.

This action was brought against Walker, the defendant, to recover the price of a steam-boiler and fittings. There appears to be no controversy in regard to the making and furnishing of the boiler, but the defendant contends, that it was contracted for by Wing and Thompson, who are liable therefor, and not by himself. A verdict having been found for the defendant, the plaintiffs move to set the same aside, for supposed error in several rulings made by the Court below in the progress of the trial.

The first exception taken was to the admission of the seventh interrogatory and answer, contained in the deposition of Boring Wing, one of the firm of Wing and Thompson. This deposition was introduced for the purpose of showing that Wing and Thompson contracted for the boiler, and not the defendant; and *464 the answer objected to, tended directly to charge the firm with the price of the boiler. It was, so far, an answer against interest, and no objection occurs to us that can render the answer incompetent. The plaintiffs’ counsel, in their argument, appear to have waived this exception.

The next exception raises the question, how far a party may go in contradicting his own witnesses. In the reading of Wing’s deposition, the plaintiffs excepted to one of the answers, showing that the contract was in writing, and the answer was not read. Upon the introduction of Thompson, as a witness, and his statement that the contract was not in writing, the plaintiffs interposed and withdrew their objection to Wing’s answer, showing it to be in writing, and then took the ground that Thompson could not contradict Wing. This answer of Wing was eventually read at the plaintiffs’ request, and. it might be suggested that, to that extent, Wing was the witness of the plaintiffs. But we are not inclined to draw any nice distinction of this kind, but to treat Wing as the defendant’s witness throughout.

It is well settled, that a party cannot directly impeach his own witness. But this rule does not prevent him from showing that the facts testified to are incorrectly stated by the witness.

In McArthur v. Sears, 21 Wendell’s Rep. 190, Cowen, J., says, “ Nothing is better settled than that a party may set his own witnesses right by' other evidence of a material fact, even though it contradict and tend indirectly to discredit him.” Mr. Qreenleaf lays down the rule thus: “ The party calling a witness is not precluded from proving the truth of any particular fact by any other competent testimony, in direct contradiction to what such witness may have testified; and this, not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was unworthy of belief.” 1 Greenl. Ev. § 443. This doctrine is sustained by numerous authorities. Lawrence v. Barker, 5 Wendell, 305 ; Jackson v. Leek, 12 Wendell, 105 ; Cowden v. Reynolds, 12 Serg. & Rawle, 281 ; Brown v. Bellows, 4 Pick. 179 , 194; Dennet v. Dow, 5 Shep. Rep. 19; Perry v. Massey, 1 Bailey’s Rep. 32; Farr v. Thompson, 1 *465 Cheves, 44 ; Bradford v. Bush, 10 Alabama Rep. 386 ; Wolf v. Hanver, 1 Gill. 84; Shelton v. Hampton, 6 Iredell’s Rep. 216. And the rule applies to statements made in depositions, as well as to oral testimony. Brown v. Osgood, 25 Maine Rep. 505 ; McArthur v. Sears, 21 Wendell, 190 .

The English rule is the same as in. this country. In Ewer et al. v. Ambrose et al. 3 Barn. & Cress. 794, Bailey, J., says “ I have no doubt that if a witness gives evidence contrary to that which the party calling him expects, the party is at liberty afterwards to make out his own case by other witnesses.” So also, in the doctrine of Richardson v. Allen, 2 Stark. Rep. 334 ; Bradley v. Ricardo, 8 Bingham, 57; 4 Barn. & Cress. 27 ; 6 Ryland, 127 ; 1 Phil. Ev. 309.

The distinction which is attempted to be drawn in the argument between the testimony of Wing and Thompson, that Wing’s testimony is in the nature of primary evidence, while that of Thompson is only secondary, does not exist in fact. The contradiction between them, is not as to what the contract'was, but whether it was in writing or not, and the testimony of Thompson upon the point was of the same degree as that of Wing. We entertain no doubt that Thompson was rightly admitted, and that th@ ruling of the Court, in this respect, was correct.

A further exception was taken to the testimony of Thompson, because the memorandum-book, of which he spoke, was not produced. But this exception cannot prevail. Thompson was called for the purpose of proving the contract between his firm and the plaintiffs, and in introducing his account of the transactions between Walker and the firm, proceeded to relate that Walker came to their shop with a memorandum-book, on which he had set down what he wanted, and among the articles was a boiler. This evidence was, evidently, as the case finds, merely introductory to the main matter in controversy; and as such was not exceptionable. It came out incidentally, as evidence of the kind frequently will, even from intelligent and truthful witnesses. As soon as the objection was taken, nothing further was said about the book; nor does it appear to have been relied upon at all as evidence. A verdict will not be set aside on account *466 of the admission of introductory or immaterial evidence. Davis v. Sanders, 11 N. H. Sep. 259, 263; Clement v. Brooks, 13 N. H. Rep. 92, 95 ; Hamblett v. Hamblett, 6 N. H. Rep. 333 .

The next exception taken was to the competency of Pillow as a witness for the defendant:' Pillow was the assignee of Wing and Thompson, and at a previous term had. been admitted- to defend the action. At .the term at which the case was tried, his appearance was withdrawn by leave ■ of the Court, and he was used as a witness. He was excepted to on the ground that he was a privy, in law, to the suit, and would be bound by the judgment that might be rendered in it. If the plaintiffs were right in this position —. if Pillow would be bound by the judgment-, or was in any way legally interested in the result of the action, he was incompetent as a witness. Rut how could he be bound by the judgment ? Or in what way was he interested in the result ?

The plaintiffs brought their suit against Walker, to recover the price of the boiler and fittings, "charging him with being indebted to them therefor. Neither Wing and Thompson, nor Pillow, were in any way- parties to -the suit; nor were they notified either by the plaintiffs or Walker to appear in the action. But Pillow, supposing that the interests of his assignors might, in some way, be affected by the suit, obtained leave of the Court to appear and defend in the name of Walker. The effect of such an appearance is not to make either Wing and Thompson or Pillow parties to the record, properly speaking. In case of the plaintiffs’ recovery, no .judgment could be made up against them, nor could any execution issue against them. The Court could require Pillow, on having leave to appear, to give security for any costs that might arise by reason of his interference in the • case; and, upon the- plaintiffs’ succeeding, they could have their remedy upon the security furnished. Such is the ordinary practice. It is analogous to an appearance for subsequent attaching creditors, and the appearance may be withdrawn at any time by permission of the Court, upon such terms as they may order; unless a private bond has been given to the opposite party. In this case, Pillow’s appearance had been withdrawn, and it is not suggested that any security for costs had been required or given. *467 Personally, then, he could. have no interest in the result of the suit; neither could he be affected in his representative character, as assignee of. Wing and Thompson. The principle involved in this exception was settled in Holland v. Seaver, 1 Foster’s Rep. 386. It was held in that case that the assignee of a bankrupt, who had appeared to defend the action by leave of the Court, was not such a party to the record that judgment could be rendered against him ; and a motion for judgment against the assignee, for costs occasioned by his appearance, was denied.

The position that a verdict and judgment in a former action upon the same question, bind both parties and privies, is not controverted. But neither Pillow nor his assignors were privy to the subject-matter of this suit, within the legal meaning of the term, and could not be affected by any notice of the pendency of the suit. The verdict and judgment obtained in this action could not be used in a suit between Wing and Thompson, and Walker, or between Pillow and Walker. There was no connection, necessarily, between the contract which was the subject of inquiry in this suit and that which may have been made between Wing and Thompson, and Walker; and the authorities cited by the plaintiffs, although applicable to the general principle, do not sustain the position assumed in this case. In no point of view that we have been able to look at the question, can Pillow be regarded as an incompetent witness.

The last exception taken, was to the ruling of the Court in excluding the evidence which was offered for the purpose of showing that the plaintiffs were unwilling to trust Wing and Thompson. The transaction which the plaintiffs proposed to prove, related to a boiler which was said to have been furnished for one Johnson. This evidence might well enough tend to show that the contract in regard to that boiler was, that Johnson’s note should be given for it; or, it might show, that the plaintifis could more readily obtain the cash on Johnson’s note than on Wing and Thompson’s; or that they had more confidence in the responsibility of Johnson than in Wing and Thompson; but it has no pertinency to the issue between these parties. The question was not, whether Wing and Thompson were responsible, but whether Walker con *468 tracted with the plaintiffs for this boiler. If this evidence had been admitted, a collateral issue would at once have been raised, and the time of the Court and jury been taken up in trying a question not presented by the pleadings.

Neither was this evidence competent as tending to contradict Wing. The statement of Wing that he contracted for a boiler to be used with an engine built for Johnson, was merely introductory. Had it been objected to, it could not have been admitted unless upon the ground that it was introductory and therefore immaterial. It could not have been received to show the responsibility of Wing and Thompson or to have any effect upon the issue before the jury.

The opinion of the Court is, that the plaintiffs’ exceptions must be overruled, and that there must be, Judgment on the verdict.