Gallion & Gregory v. Winfree
Gallion & Gregory v. Winfree
Opinion of the Court
delivered the opinion of the court.
This is an action to recover damages for breach of an oral contract for the division of commissions on a' sale of real estate. The parties admit the existence of a contract, but their evidence is in direct conflict as to the terms of that contra,ct. The plaintiff, Winfree, claims that by the contract he was to furnish the defendants (Gallion & Gregory) the names of all timber people who he thought would be interested in buying timber in Lunenburg and near by counties, and also to procure such tracts of timber for sale as he could; that the defendants were to look after the cor- ■ respondence and make such sales as they could, and if - the defendant sold any timber, whether the tract were furnished by Winfree or not, to any of the parties whose names had been furnished by Winfree, or if they should sell any of the tracts secured by Winfree to any person
Gallion & Gregory, on the other hand, testify that the defendant came to them and asked Mr. Gregory if they knew anything about the Taylor tract of timber land in Amelia county, to which he replied that he did, but that it could not be bought; that the plaintiff then said, “It can be bought and Mr. Taylor is very anxious to sell it,” and if one of them would go down to see Taylor and make a contract with him to handle the timber, the plaintiff would give them names of parties who might buy it; that he had a man in West Virginia who would be down to look it over within
There was a judgment for the plaintiff in the court below for $500, and to that judgment this writ of error was awarded.
The evidence is certified in narrative form, and is plainly not altogether in the language of the witnesses. It does not appear from the transcript that the plaintiff was recalled after the defendants had introduced their testimony, but such may have been the fact, and all .of his testimony' cer
It must also be borne in mind that the statement which was received in evidence was that of a party to the contract as well as a witness on his own behalf. The language of Buchanan, J., in Repass v. Richmond, 99 Va. 508, 39 S. E. 160, is very pertinent to the case at bar. After stating the general rule as to the exclusion of prior consistent statements of a witness and the exception thereto, he also states the rule where the witness is also a party to the suit and to the contract as follows: “The witness, whose former statement was permitted to go to the jury, was not merely a witness, but was also a party to the suit and to the bond, whose validity was the matter to be determined by the jury. His relation to the bond was the same when his prior statement was made that it was when he testified in the cause. This being so, it is clear that under the rule as stated by Mr. Greenleaf and the other authorities cited, evidence of his former statement was inadmissible. Not only was the evidence not within the exception of the general rule, but it is obnoxious to another equally well settled rule of law, that a party cannot give in evidence his own declarations, and upon this ground also such evidence is held to be inadmissible. L. & P. S. Turnpike Co. v. Heil, 118 Ind. 135, 20 N. E. 703.”
The same general rule is stated and enforced by Kelly, J., in Hilleary v. Hubbell, 119 Va. 123, 89 S. E. 111. The case at bar is not within the exception referred to in the opinion last mentioned.
Reversed.
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- 1. Order of Proof. — Discretion of Court. — The order of the introduction of evidence is left largely to the discretion of the trial court, whose ruling thereon will not be disturbed unless plainly prejudicial to the rights and interests of the party complaining thereof. 2. Declarations and Admissions. — Corroboration of Witness— Prior Consistent Statements. — The prior consistent statements of a witness are not receivable to corroborate his testimony, as the repetition of a story does not render it any more trustworthy. S. Declarations and Admissions. — Impeachment of Witness — Prior Consistent Statements. — Where the impeachment of a witness Consists in a charge of bias or interest or corruption, a prior consistent statement of the witness before the time when the supposed bias, or interest, or corruption could have existed, is admissible. 4. Declarations and Admissions. — Self-Serving Declarations — Case at Bar. — In an action to recover damages for breach of an oral contract for the division of commissions on a sale of timber, plaintiff and the vendors of the timber testified that ■ when plaintiff applied to the vendors to be allowed to 1 sell the . timber, the vendors stated that the timber had been listed with defendants, and that thereupon plaintiff stated: “That is all right; I am in on that with them. I have a contract with defendants.” Held: That this statement of plaintiff was inadmissible as self-serving, notwithstanding the introduction by defendant of a letter by plaintiff tending to show that plaintiff was not claiming at the time the letter was written the interest in the commissions that he claimed in his action. 5. Declarations and Admissions. — Self-Serving Declarations — Witness a Party. — Where a witness is also a party to the suit, and to the contract which is the subject matter of the suit, his own prior self-serving declarations are inadmissible. 6. Appeal and Error. — Judgment of Appellate Court — Remand.— Where with the objectionable testimony admitted by the lower court stricken out, the case is not left in such condition that final judgment can be entered in the Supreme Court of Appeals' under the provisions of section 6365, Code of 1919, it will be remanded for a new trial to be had in conformity with the opinion of the Supreme Court of Appeals.