It was very material to the plaintiffs case to show what Frank Lucas said, because, if any contract of the kind declared on was made between the plaintiff and the defendant, it was made on the defendant’s part by his son Frank, as agent for his father. It was a verbal contract, concerning which there was no other disinterested witness, no person being present at this conversation, as we infer, except the plaintiff' and Frank Lucas. The contract was all embodied in the conversation between them, which the plaintiff' was going on to relate, when the defendant objected that Frank’s statements were not evidence against him. The objection was well taken, and must have been sustained by the court if the plaintiff had not recognized the force of it, and submitted to it; because the statements of Frank were quite immaterial, unless it were shown that Frank was the agent of the defendant, and authorized to make the promise relied on by the plaintiff.

*571The fact of agency conld only be proved by calling, as a witness, Frank, or his father, — at least, it does not appear that any other person had knowledge of the fact. It was, therefore, proper and legal, as well as indispensable to the plaintiff’s case, that lie should offer the testimony of Frank. Being placed upon the stand, Frank admitted, in substance and legal effect, that he went to the plaintiff as the agent of the defendant, and that whatever he then said was what his father, the defendant, told him to say. The plaintiff might have suspended the examination of Frank at this point, and then have testified himself to the declarations of Frank ; but he had the right to go further, and prove the contract by the testimony of Frank. If the plaintiff told the truth in giving his subsequent account of the conversation, he had the right to suppose that Frank would tell the same story. But Frank gave a very different version of the matter, and one fatal to the plaintiff’s case, if credited by the jury; and the plaintiff', if truthful himself, must have been greatly surprised by the character of Frank’s testimony.

There was no collusion between Frank and the plaintiff, and the plaintiff understood the situation, that Frank was the son of the defendant; but, if he was conscious that the truth was as he himself maintained, he might reasonably rely upon the testimony of Frank, in aid and confirmation of his own. But the plaintiff was not obliged to rely solely upon the testimony of Frank, nor was he precluded from offering his own or any other testimony that it might have been in his power to produce, simply because his attempt to prove his case by the son of his adversary was a miserable failure.

It is not uncommon that a party offers a witness who does not help him, and it would be strange if he were to be concluded by the results of a fair and proper though hazardous experiment. We are entirely unable to perceive any grounds upon which the defendant’s first exception can be sustained.

In Alexander v. Gibson, 2 Camp. N. P. 555, a witness was called by the plaintiff to prove that the horse, which was the subject of the controversy, had been sold to the plaintiff by the defendant’s servant, who warranted the horse to be sound. Afterwards, the plaintiff voluntarily called the servant himself, who swore positively, upon direct examination, that he was expressly forbidden by his master to warrant the lioi’se, and that he had not given any warranty. The plaintiff’s counsel, nevertheless, called another witness to prove that at the time of sale the servant declared that “ the horse was sound all over.” It was objected that the plaintiff was not now at liberty to contradict his own witness. But Lord Ellenborough said, — “ If a. witness is called, on the part of the plaintiff, who swears what is palpably false, it would be extremely hard if the plaintiff’s case should, for that reason, be sacrificed. But I know of no rule of law by which the truth is, on such an occasion, to be shut out, and justice is to be perverted. * * If a witness is called, and gives evidence against the party calling him, I think he may be contradicted by other witnesses on the same side.”

The plaintiff’s testimony in contradiction of Frank’s statements was *572not, to be sure, offered for tlie purpose of a general impeachment of the witness, upon whom he still rélied to prove the fact of agency. It was evidence competent, independent of that question, to prove one of the main facts in issue in the case. As such, we must regard it as en, tirely unexceptionable. But the objection, we suppose, is, that, by this special impeachment, the party represents that witness to be unworthy of credit upon whom he relies to prove the independent fact of agency. It does not follow, necessarily, that the jury, believing the plaintiff, must therefore discredit the testimony of Frank in every particular, and conclude that he had no authority to make any statement as the agent of his father. The agency, though a material fact, is not so important as the question what did the agent say.

It is said, indeed, by Lord Ellenborough, in the case cited, that “ a party is not to set up so much of a witness’s testimony as .makes for him, and to reject or disprove such part as is of a contrary tendency.” This rule, however, if it be correct, cannot be strictly and literally applied to a case like the present, where the part of the witness’s testimony, which is uncontradicted by the plaintiff, namely, the son’s agency, was entirely independent of the main issue, was merely introductory, and was, in fact, relied on by both sides. See 2 Phil. Ev. 449.

The second exception is more formidable in appearance, but, as we regard it, groundless in substance. This relates to the introduction of evidence concerning statements made by the witness Frank, inconsistent with his evidence on the stand. Whether this evidence was admitted because the court found, in its discretion, that the plaintiff was surprised, does not clearly appear from the case. If received upon this ground, the case falls clearly within the principle of Hurlburt v. Bellows, 50 N. H. 105, 116. Upon the evidence of Frank, and the subsequent testimony of the plaintiff, the presiding judge might have found that the plaintiff was taken by surprise at the testimony of Frank: the judge did find that there was no collusion between the plaintiff and Frank, but that the latter was hostile to the plaintiff and friendly to the defendant. In Hurlburt v. Bellows, the court expressly decided that the contradictory declarations of a witness may be proved, after it is established that the party calling the witness was surprised at his testimony, and was not guilty of collusion or of any bad faith, and that the witness was adverse to the party calling him.

In this view of the matter, which we feel warranted from the statement of the case in adopting, it becomes-unnecessary to enter upon the broad field of controversy which has been opened by the discussion by courts and text-writers of the general question, whether a party shall, in all instances, be permitted to prove the previous contradictory declarations of a witness whom he himself first called to the stand ;— a question left open in Surlburt v. Bellows; a general proposition supported by the weight of authority, according to Greenleaf, though doubted by Redfield, questioned by the court in Ryerson v. Abington, 102 Mass. 526, but strongly maintained by Phillipps. See 1 Gr. Ev., sec. 444, sec. 444 a, Redfield’s ed.; 2 Phil. Ev. 450-463; 1 Stark. Ev. *573520. The latter author, after stating the prominent reasons for and against the admissibility of statements inconsistent with the witnesses’ testimony on the stand, and reviewing the authorities, concludes that a sufficient answer to the proposition, that a man shall not give evidence to discredit his own witness, is, that “ a witness ought not to receive more credit than he deserves; and, if he has given different statements of the same transaction, no wrong is done by proving them. Whether such proof may discredit him at all, or to what extent, the jury are to determine.” Upon this general subject, the argument of the learned counsel for the plaintiff, in Hurlburt v. Bellows, 50 N. H. 106-115, is deemed worthy of attentive and serious consideration.

Our conclusion is, that the defendant’s exceptions must be overruled, and there must be Judgment on the verdict.