Bennett v. Susser

• Decision Date: 03 April 1906
• Citation: Bennett v. Susser, 191 Mass. 329, 77 N.E. 884 (Mass. 1906)
• Parties: BENNETT v. SUSSER.
• Court: Supreme Judicial Court of Massachusetts

191 Mass. 329

77 N.E. 884

BENNETT v. SUSSER.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1906

COUNSEL

Lincoln Bryant and Chester W. Ford, for plaintiff.

Elisha Greenhood, for defendant.

OPINION

LATHROP, J.

This is an action of contract on an alleged promise of indemnity to save the plaintiff harmless if he would go bail with the defendant for one Freed. At the trial in the superior court, the jury returned a verdict for the plaintiff; and the case is before us on the defendant's exceptions. The bill of exceptions states that both parties testified, and that there was evidence to support the plaintiff's claim; that the defendant denied making any such promise as alleged, and that there was evidence in support of such denial.

1. The defendant introduced evidence tending to show that he was on bad terms with Freed, and did not ask the plaintiff or any one else to go bail for Freed. On cross-examination of the defendant as a witness, he denied that prior to going bail for Freed he had ever called upon one Rottenberg and asked him to go bail for Freed, or that, after Freed's default he had sold out Freed's store. In rebuttal, the plaintiff offered evidence tending to show that the defendant did call on Rottenberg with Freed's wife for the purpose of getting Rottenberg to go bail for Freed, and to show that the defendant did sell Freed's store to one Aronson, after Freed's default. The defendant excepted to the admission of this evidence. The defendant contends that the answers of the defendant on cross-examination to the questions whether he had asked Rottenberg to go bail or had sold out Freed's store were upon immaterial and collateral matters, and were conclusive and not capable of contradiction, and that the admission of evidence in contradiction was erroneous. The defendant, by his testimony on direct examination that he had not asked any one to go bail for Freed, would seem to have opened the door for the plaintiff to show the contrary; but if we assume that the questions put on cross-examination were immaterial, still they were admitted without objection, and were in the case. It was within the discretion of the presiding judge to allow the plaintiff to put in evidence to show the contrary. As is said by Mr. Justice Endicott, in Treat v. Curtis, 124 Mass. 348, 352: 'The introduction or exclusion of immaterial evidence to meet immaterial evidence is within the discretion of the court.' See, also, Brooks v Action, 117 Mass. 204.

2. The next exception relates to the third request for instructions by the defendant, which was as follows: 'If the jury are satisfied that the plaintiff either in this or in any previous trial, has deliberately misstated anything, the jury may consider that such conduct is an admission that his claim is a wrongful one.' The judge declined to give this ruling and instructed the jury as follows: 'If any witness had given any testimony at any other trial, materially different from that given by him at this trial, the jury should consider the fact as bearing upon the credibility of such witness at this trial.' No exception was taken to the instruction given, but only to the ruling asked for and refused. The defendant in his brief says: 'The jury should have been instructed that deliberate perjury of the plaintiff might be considered an admission that his claim was a wrongful one.' In the ruling given the judge evidently had in mind the rule which has been applied to a party in a case who testifies, as well as to any other witness, and which is thus stated by Mr. Justice Foster in Brigham v. Clark, 100 Mass. 430: 'Wherever a witness has testified to any material facts, any acts or declarations of his which appear to be inconsistent with his version at the trial are competent by way of contradiction.' This rule has since been followed. Foster v. Worthing, 146 Mass. 607, 16 N.E. 572; Handy v. Canning, 166 Mass. 107, 109, 44 N.E. 118. It is, however, a familiar rule that if any party to a cause suborns a witness to testify falsely, this may be shown as an admission on his part that he has not a just claim. Egan v. Bowker, 5 Allen, 449. The rule is the same if a person whose liability is in question immediately after the act upon which it is sought to charge him assigns or conveys all his property. Banfield v. Whipple, 10 Allen, 27, 87 Am. Dec. 618. It may also be shown that a party to a cause attempted to bribe a juror at a previous trial of a case. Hastings v. Stetson, 130 Mass. 76. So the suppression of important evidence is a fact to be weighed against the party suppressing it. Simes v. Rockwell, 156 Mass. 372, 32 N.E. 484. In Boyle v. Columbian Fire Proofing Co., 182 Mass. 93, 103, 64 N.E. 726, 730, it was said by Mr. Justice Loring: 'The presiding judge instructed the jury that if they found that on party or the other had put in testimony knowing it to be...