Hinchcliffe v. Koontz

• Decision Date: 11 January 1890
• Docket Number: 13,998
• Citation: 23 N.E. 271,121 Ind. 422
• Parties: Hinchcliffe et al. v. Koontz
• Court: Indiana Supreme Court

23 N.E. 271

121 Ind. 422

Hinchcliffe et al. v. Koontz

No. 13,998

Supreme Court of Indiana

January 11, 1890

From the Porter Circuit Court.

The judgment is affirmed, with costs.

A. D Bartholomew and H. A. Gillett, for appellants.

W Johnston and E. D. Crumpacker, for appellee.

OPINION

Mitchell, C. J.

This was an action by John Koontz against William E. and George Hinchcliffe, to recover damages for the alleged breach of a contract, whereby the former was hired to serve the latter as foreman of their brick-yard for the period of one year at an agreed salary. It is charged that after the plaintiff entered upon the performance of his contract the defendants wrongfully dismissed him, without any fault on his part, and that although he had made diligent effort, he had been unable to obtain any other work that he could perform.

There was a verdict and judgment for the plaintiff below. A number of questions are presented on this appeal under an assignment that the court erred in overruling the motion for a new trial.

It was a subject of dispute at the trial whether the appellee was as he claimed, hired for one year, or whether he had been employed, as the defendants asserted the fact to be, for an indefinite period.

As tending to support the appellee's claim, the court admitted a letter in evidence, written by the defendants the day before the contract of hiring was made, in which it was stated that one of the latter desired to see him the next day, at a place appointed, with reference to securing his services "as foreman for the coming year." It appeared that this letter, although written the day before, was not received by the plaintiff until the day after the contract of hiring was completed, and it is now urged that it was for that reason error to admit it in evidence. This objection is without merit. The letter was admissible upon the ground that it was in effect a declaration made contemporaneously with, and explanatory of, the act of hiring. Durham v. Shannon, 116 Ind. 403 (9 Am. State Rep. 860, 19 N.E. 190).

Declarations made contemporaneously with, or immediately preparatory to, a particular litigated act, which tend to illustrate and give character to the act in question, are admissible as part of the res gestoe. People v. Vernon, 35 Cal. 49 (95 Am. Dec. 49, and note); Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, 19 N.E. 453.

The character and purpose of an act are frequently indicated by what is said by the person at the time, or while in the immediate preparation to do the act. This letter falls within the principle above stated. It was written in immediate preparation of the act of hiring, and contained a declaration that the writers desired to see the plaintiff the next day, with a view of securing his services for the coming year as foreman. It illustrates, throws light upon, the act of which it was the immediate forerunner.

The letter was not of itself evidence of the fact that the hiring was for the period of one year, but, like any other admission of an adverse party, it was proper to be considered, as corroborative of the plaintiff's version of the contract. Milne v. Leisler, 7 Hurl. & N. 786; Eastman v. Bennett, 6 Wis. 232.

It is next urged that error was committed by the refusal of the court to allow certain questions to be put to witnesses which it is claimed tended to show feeling, interest and bias on the part of the witnesses. While it is undoubtedly true that a witness may be required to explain anything that would tend to show such bias, prejudice or interest as would incapacitate him from testifying impartially and accurately, yet the extent to which a cross-examination may be carried in the direction indicated by the questions rejected is a matter resting in the sound discretion of the court. Bessette v. State, 101 Ind. 85. That discretion was not abused in the present case.

The appellants proposed to prove that the plaintiff was frequently seen on the streets in an intoxicated condition after he was discharged. This evidence was properly...