Jackson v. Litch

• Decision Date: 03 January 1870
• Citation: 62 Pa. 451
• Parties: Jackson <I>et al. versus</I> Litch.
• Court: Pennsylvania Supreme Court

62 Pa. 451

Jackson et al. versus Litch.

Supreme Court of Pennsylvania.

October 22, 1869.

January 3, 1870.

October 22d 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Jefferson county: No. 81, to October and November Term 1869.

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Arthurs, Jenks, and Jenks & Clark, for plaintiffs in error.— Cross-examination should be confined to testimony given in chief: Helser v. McGrath, 2 P. F. Smith 533; Breinig v. Metzler, 11 Harris 157. A written contract cannot be construed by parol: Fisher v. Deibert, 4 P. F. Smith 463; Fox v. Foster, 4 Barr 119; Cummings v. Antes, 7 Harris 287; Heebner v. Worrell, 2 Wright 379; Gottsman v. Penn. Ins. Co., 6 P. F. Smith 214. The rights under the article were an interest in land, and within the Statute of Frauds: Bouvier's Law Dict., 457; Huff v. McCauley, 3 P. F. Smith 206; Ritger v. Parker, 8 Cushing 145; Collam v. Hocker, 1 Rawle 111; Yeakle v. Jacob, 9 Casey 376; Wilson v. Clarke, 1 W. & S. 558. The 5th point was not fully answered: Penna. Railroad v. Zebe, 9 Casey 323. For the breach of a contract some damages are recoverable; and the qualification "if any" in the answer was therefore error: Holler v. Weiner, 3 Harris 244; Forsyth v. Palmer, 2 Id. 97. The 6th point should have been answered: Noble v. McClintock, 6 W. & S. 58; North Whitehall Township, 11 Wright 161; Act of April 17th 1856, § 3, Pamph. L. 396, Purd. 164, pl. 155. The court was bound to put a construction on the writings: Miller v. Fitchthorn, 7 Casey 256; Reamy v. Culbertson, 9 Harris 512.

Gordon & Brother, for defendants in error.

The opinion of the court was delivered, January 3d 1870, by SHARSWOOD, J.

The first assignment of error is that the court permitted two witnesses, called by the defendants below, who are the plaintiffs in error, to prove that they respectively had authority from the plaintiff to receive certain sums of money for which they had given receipts, to be asked in cross-examination what the money was received for. It is certainly well settled in this state that cross-examination must be confined to the matters which have been stated in the examination in chief. A party will not be permitted to lead out new matter, constituting his own case, by the cross-examination of his adversary's witnesses: Ellmaker v. Buckley, 16 S. & R. 72; Floyd v. Bovard, 6 W. & S. 75; Mitchell v. Welch, 5 Harris 339; Turner v. Reynolds, 11 Harris 199. Yet I have not been able to find a single case in which this court has reversed on that ground. It has generally been considered as a matter within the sound discretion of the court below, and in Schnable v. Doughty, 3 Barr 392, though the Supreme Court thought that the rule had been violated they distinctly refused to reverse. In Helser v. McGrath, 2 P. F. Smith 531, the present Chief Justice remarked, "These rules, as well as all others on the order of examination of witnesses and the introduction of testimony, have for their object the eliciting of truth and the preservation of the equality of the rights of parties in trials in courts. Much, however, must still be left to the discretion of the judge. Neither the rule nor the exception must be allowed, if it can be prevented, unduly to prejudice the parties. The exercise of a prudent discretion by the judge is the only guard against this in many cases. Although we will not reverse in this case for an excess of latitude in the cross-examination, because we do not discover the injury from it, yet we think it was very great and beyond the limits of the authorities generally. Doubtless the learned judge thought he saw the propriety of allowing it and, we cannot say he was wrong, for we have not his means of judging." It may be concluded from these authorities that in order to reverse, it must be an extreme case, in which discretion has been abused and in which it is apparent that the party has been injured. This case is certainly not of that character. The question propounded to the witness was indeed within the latitude heretofore conceded; for where a witness has stated a fact, he may be asked by the other party to detail all the circumstances within his knowledge which qualify it, even though they may constitute new matter and form part of his own case. This the authorities clearly establish: Perit v. Cohen, 4 Whart. 81; Markley v. Swartzlander, 8 W. & S. 172. "A party," says C. J. Gibson, "is entitled to bring out every circumstance relating to a fact which an...