Hildeburn v. Curran
| Decision Date | 28 February 1870 |
| Citation | 65 Pa. 59 |
| Parties | Hildeburn <I>et al. versus</I> Curran. |
| Court | Pennsylvania Supreme Court |
Before READ, AGNEW, SHARSWOOD and WILLIAMS, JJ. THOMPSON, C. J., at Nisi Prius
Error to the District Court of Philadelphia: To July Term 1869, No. 156.
G. W. Biddle (with whom was A. M. Burton), for plaintiff in error.—One question was the length of time the plaintiff was out of defendants' employ. The testimony of Owens was introduced by plaintiff to show at what time he left — what he had previously said connected with that was pertinent and not collateral: Gaines v. Commonwealth, 14 Wright 327; Gregg Tp. v. Jamison, 5 P. F. Smith 468; 1 Greenl. Ev. § 462 and notes; Attorney-General v. Hitchcock, 1 Exch. 91; 2 Phillips 970. The contest on the note being between the original parties, the consideration might be inquired into: Clement v. Reppard, 3 Harris 113; Barnet v. Offerman, 7 Watts 130; Hill v. Buckminster, 5 Pick. 391; Geiger v. Cook, 3 W. & S. 266; Lenheim v. Wilmarding, 5 P. F. Smith 73; Wood v. Downes, 18 Ves. 123; Crowe v. Ballard, 3 Br. Ch. Rep. 120; Murray v. Palmer, 2 Sch. & Lef. 486; Dunbar v. Tredennick, 2 B & B. 317. The giving of the note in mistake might be corrected, as payments made in mistake may be recovered back: Whitcomb v. Williams, 4 Pick. 228; Waite v. Leggett, 8 Cowen 195; Chitty on Cont. 543 and note 544; Snyder v. Findley, Coxe 48; Lancaster Co. Bank v. Albright, 9 Harris 228; White v. Heylman, 10 Casey 142; 2 Greenl. Ev. § 121; Miles v. Stevens, 3 Barr 21; Thomas v. Brady, 10 Barr 168; Balt. and Ohio Railroad v. Hoge, 10 Casey 214.
J. P. O'Neil (with whom was P. E. Carroll), for defendant in error.—No harm was done by rejecting the evidence: Lothrop v. Wightman, 5 Wright 305; Scott v. Baker, 1 Id. 330; Wright v. Cumpsty, 5 Id. 102.
The opinion of the court was delivered, February 28th 1870, by SHARSWOOD, J.
The first assignment of error is, that the court below erred in rejecting evidence offered for the purpose of contradicting a witness examined on behalf of the plaintiff below. The declaration was on a note given, as was alleged, for services due the plaintiff, as the salesman of the defendants, with the common counts. One of the questions involved in the controversy appears to have been the period of time the plaintiff had been in the service of the defendants. He had been absent abroad and returned. The witness had been asked in cross-examination whether he had not said to Mr. Dubosq that he had received a letter stating that Mr. Curran was not coming back? This he denied. Mr. Dubosq was produced by the defendants, and they offered to prove by him that the witness had said to him in the fall of 1866 that he had a letter from the plaintiff to the effect that he was not coming back to this country; that he had not informed Mr. Hildeburn of Mr. Curran's intention as yet, but that if he (Mr. Dubosq) would bring his nephew up to-morrow, he would tell Mr. Hildeburn to-day; and that in consequence of this conversation he did take his nephew to Mr. Hildeburn's store the next day, and his nephew was employed in Mr. Curran's place. The rule is well settled, that if a witness is cross-examined to a fact purely collateral and irrelevant to the issue, and answers it without objection, he cannot be contradicted. The reason is obvious. The investigation might thus branch out into any number of immaterial issues upon the mere question of the credibility of a witness: 1 Greenl. on Ev., § 448; Griffith v. Eshelman, 4 Watts 51; Elliott v. Boyles, 7 Casey 65. Was then the fact that the plaintiff had written from abroad that he did not intend to return, and in consequence of it another salesman had been employed in his place, material? Clearly not. If the plaintiff had returned in point of fact, and with the knowledge and consent of the defendants resumed his position in their store, he made out his claim for services subsequent to his return, otherwise not. It mattered not what his intention may have been, nor whether the defendants had employed another to supply his place in the interim. The test of whether a fact inquired of in cross-examination is collateral is this, Would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea? Applying this test, it is evident that the learned judge below committed no error in rejecting this offer.
The second assignment of error is to the refusal of the court to charge as requested in the defendants' fourth point, which was, that "if the jury believe that there was nothing due to the plaintiff by the defendants at the time the note sued on was given,...
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State v. Matheson
...a matter which the cross-examining party would not have been permitted to introduce in evidence as a part of his original case. Hildeburn v. Curran, 65 Pa. 59; Johnston v. Spencer, 51 Neb. 198 (70 N.W. Welch v. State, supra. And of course the prosecution cannot show declarations of a third ......
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Commonwealth v. Clemmer
... ... his answers: Griffith v. Eshelman, 4 Watts, 51; ... Wright v. Cumpsty, 41 Pa. 102; Hildeburm v ... Curran, 65 Pa. 59 ... Tenth ... The defendant had written several letters to the witness ... DeKalb cautioning her to keep silent and he ... ...
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State v. Matheson
...a matter which the cross–examining party would not have been permitted to introduce in evidence as a part of his original case. Hildeburn v. Curran, 65 Pa. 59;Johnston v. Spencer, 51 Neb. 198, 70 N. W. 982; Welch v. State, supra. And of course the prosecution cannot show declarations of a t......
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Smith v. State
...Miss. 820, 19 So. 826 (1896); Combs v. Winchester, 39 N.H. 13 (1859); State v. Tucker, 58 N.D. 82, 224 N.W. 878 (1929); and Hildeburn v. Curran, 65 Pa. 59 (1870). I infer from these cases and the authorities that any evidence which is not competent to be received as evidence in one's case i......