Parsons v. Suydam

This was an action brought to recover for money alleged to have been loaned by the plaintiff’s assignor to the defendant. On the trial the plaintiff was suffered to prove not only various loans of money to the defendant, but also money paid for his use and upon two or more promissory notes. But as suggested on the argument, no objection founded upon the variance was taken at the trial, and the whole of the various items were considered and the merits thereof decided. The court would, therefore, in any stage, allow, an ■ amendment of the form of the complaint in this particular, or disregard the variance as immaterial.

The appellant further objected that the referees’ report was defective, that it did not find specially the various facts required by the Code to be separately stated. If this objection is well founded it furnishes no reason for reversing the. judgment for two reasons: first, because. such a defect is the proper subject of a motion to direct a further and more specific return; and secondly, because it was offered, on the argument of the appeal, to allow the case to go back to the referees to have the alleged defect supplied, and the appellant’s counsel declined to accept such an order.

But I am still of the opinion intimated by the court on the argument, that the referees erred in striking out the testimony of the defendant, Suydam, and in refusing to .allow him to *281testify in contradiction of the evidence given by the assignor of the plaintiff.

The 399th section of the Code is very explicit. “ When an assignor of a thing in action is examined as a witness on behalf of a person deriving title from him, the adverse party may offer himself as a witness to the same matter on his own behalf, and shall be so received.”

Upon this trial the plaintiff proved his whole'case by Colton, his assignor. Every fact then testified to by him upon the plaintiff’s examination going to establish the indebtedness alleged in the complaint, was matter to which the defendant Suydam was a competent witness in his own behalf, either to contradict the evidence or to explain the facts testified to, and as I think (under a complaint counting in general terms upon the defendant’s indebtedness) not only to show that no such indebtedness ever existed, but even to show that there was no indebtedness at the time of suit brought as alleged in the complaint. This is possibly true. And yet when inquired of in relation to a memorandum which Colton had testified to as a memorandum of loans by him to Suydam, the defendant was not permitted to state that it was not a memorandum of loans made to him nor to show what it was. Indeed the referees in this, and in short in the whole of the defendant’s examination, refused to permit him to contradict Colton. The defendant’s counsel under such a ruling did not multiply questions, and it is unnecessary that we should follow each of the questions which were put; the distinct ruling of the referees was, that the defendant Suydam not only could not contradict Colton, but could not give any evidence having that tendency. It seemed to us on the argument, and it seems to me now, that this error was so obvious as not to require discussion; it was a practical denial to the defendant of a right distinctly given to him by the statute above recited.

The error appears to have arisen from the course which was taken on Colton’s examination. After the plaintiff had rested his case on Colton’s sole testimony, the defendant declined a cross examination in that stage of the cause and moved for a *282nonsuit, which was refused. He then, as he properly might, recalled Colton to the stand for the purpose of pursuing his examination further. This act of the defendant, the referees appear to have regarded as making • Colton the defendant’s witness. In that' view they have made it a part of the case, settled for the purposes of the appeal, that after the motion for a nonsuit was denied the defendant called the witness to prove the issues on his ‘ part: and the further examination by the plaintiff’s counsel they call a “ cross .examination” of Colton. Indeed it appears that the witness, was actually sworn a second time. Although this, if done, was probably done by the request of the defendant, we have no hesitation in saying it was improper, and such a request should not have been acceded to by the referees. The solemnity of an.oath is not a matter for trifling nor vain repetition, and when a witness is once duly sworn to testify in a cause he is sworn for all the purposes of his examination to testify to the same matter to which the assignor has testified, viz. the fact of present indebtedness and nothing more. (See Angel v. Solis, 2 E. D. Smith, 240.)

The examination of Colton by the defendant was in truth a cross examination to the very subject matter of his direct examination by the plaintiff; and what the case calls a cross examination by the plaintiff was in truth a reexamination to the same matters respecting which he was called and examined by the plaintiff in the first instance. Such a course of examination did not make Colton the defendant’s witness in any sense, depriving him of the privilege given by the statute.- It is no uncommon thing for a party to call the plaintiff’s witnesses to the stand for further examination after the plaintiff’s case is closed; but that was never held to make them his witnesses in respect to the matters to which they have testified when examined by the plaintiff.

In another aspect the ruling was erroneous. A party is not precluded from giving evidence to matters in issue between the parties in any case-merely because it contradicts his own witness. If the testimony offered is material, and goes to the very facts in issue, it is competent, although it should contradict *283every other witness whom the party has examined. The rule prohibits a contradiction which is attempted for the mere purpose of impeachment of the parties’ own witness, or where the matter sought to be contradicted is collateral only, and not going to the issue. But it is unnecessary to illustrate this, because the error was here in holding that the defendant lost the privilege which the statute conferred by calling Colton to the stand after the plaintiff rested, and so was prohibited testifying himself in contradiction- of the very statements made by Colton, testifying on behalf of the plaintiff.

. The judgment must be reversed and the case referred back. The costs of the appeal should abide the event of the suit.

Judgment reversed, and cause referred back to be further proceeded with. Costs of appeal to abide the event of the suit.