Reddick v. Young, 22,111

Docket Nº22,111
Citation98 N.E. 813, 177 Ind. 632
Case DateMay 28, 1912
CourtSupreme Court of Indiana

98 N.E. 813

177 Ind. 632


No. 22,111

Supreme Court of Indiana

May 28, 1912

From Howard Circuit Court; Lex J. Kirkpatrick, Judge.

Action by Henry W. Young against William R. Reddick. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed conditionally.

Kane & Kane, Blacklidge, Wolf & Barnes, for appellant.

J. T. Cox and Claude Y. Andrews, for appellee.

OPINION [98 N.E. 814]

[177 Ind. 634] Monks, J.

The complaint in this action, brought by appellee, is in three paragraphs. In the first paragraph he seeks to recover the purchase price of a horse, alleged to have been sold and delivered to defendant for the sum of $ 195. The second paragraph is based on a check for $ 190 on the Citizens State Bank, of Noblesville, Indiana, payable to appellee and signed by appellant. It is alleged in said paragraph that appellant stopped payment on said check, and that the same was never paid. The third paragraph is on a check for $ 5 on the Kokomo National Bank, of Kokomo, Indiana, payable to appellee, and signed by A. C. Culp. It is alleged that said Culp stopped payment of the check, and that it was never paid. It is further alleged that at all times Culp was acting as the agent of appellant.

Appellant's demurrer for want of facts to each paragraph of the complaint was overruled. Appellant filed an answer in three paragraphs, the first of which was a general denial. The second paragraph of answer was to the second paragraph of complaint, and alleged, in substance, that plaintiff sold a horse to Culp for $ 195, and received the latter's check for $ 5 as part payment therefor, and agreed to deliver the horse at Bunker Hill sound on June 26, 1907; [177 Ind. 635] that later Culp sold the horse to defendant, who agreed to take it, provided it was delivered to him sound. As Culp had not paid plaintiff for the horse, defendant advanced to Culp $ 190, and at his request made the check payable to plaintiff; that the horse was not delivered sound at Kokomo, [98 N.E. 815] but was sick and unsound, and for this reason defendant refused to take the horse, and stopped payment on the check.

The third paragraph of the answer alleged, in substance, that on June 21, 1907, defendant purchased the horse of plaintiff, who warranted it to be sound and all right, and agreed that he would deliver it in Bunker Hill, Indiana, on June 26, 1907; that, relying on this warranty, defendant executed the checks described in the complaint; that the horse was delivered sick and unsound; that defendant refused to accept it, and returned it to plaintiff.

Appellee's demurrer for want of facts, challenging said second and third paragraphs severally, was overruled. Appellee filed a general denial to the second and third paragraphs of answer. A trial by jury resulted in a general verdict in favor of appellee for $ 195 principal and $ 22.65 interest, total $ 217.65. Over appellant's motion for a new trial, judgment was rendered on the verdict.

As no cross-errors have been assigned challenging the correctness of the action of the court in overruling the demurrers to the second and third paragraphs of answer, we express no opinion as to their sufficiency.

It is insisted by appellant that the court erred in admitting the testimony of witnesses for appellee, to the effect that Oscar Corbin had stated in their presence, at Bunker Hill, that he was going back to Kokomo in time for the ball game, if he had to kill the horse, and of another witness for appellee, to the effect that Corbin had stated in his presence that he was going back to Kokomo by 12 o'clock, or kill the horse. Said Corbin was sent to Bunker Hill by A. C. Culp, who purchased the horse from appellee, to receive the horse and ride him to Kokomo on June 26. He was also to deliver [177 Ind. 636] to appellee the check sued on in the second paragraph, in payment of the balance of the purchase money for the horse. There was evidence that the horse was sound and all right when delivered by appellee to Corbin at Bunker Hill, but that he was sick when Corbin arrived at Kokomo with him. Corbin testified that he "drove slowly from Bunker Hill to Kokomo, a distance of not quite fourteen miles; that it was a hot day; that he left Bunker Hill at 10:15 a. m. and arrived at Kokomo at from 1:30 o'clock p. m. to 2 o'clock p. m." Said Corbin, on cross-examination, had testified that he did not make said statements.

One witness for appellee testified that he "saw Corbin two and one-half miles south of Bunker Hill, on the road to Kokomo, going at a right fast trot, that he observed the horse and its rider as they traveled a distance of from fifty to sixty rods. The horse was perspiring freely." Another witness for appellee testified that he was working along the road three-fourths of a mile south of Bunker Hill, and saw Corbin riding the horse, "that he observed him for a quarter of a mile and that for about two-thirds of the distance the horse was loping and the rest of the distance he was running rapidly." Two other witnesses testified that they saw the horse the same day at Kokomo about 12:30 o'clock p. m., that the horse was sweating, lathering and panting, that he looked sick, that the sweat had dried in on him, that he looked as if he had been used pretty hard, overheated.

The objection made by appellant was that said testimony was for the purpose of impeaching said witness Corbin in matters purely collateral. Said witnesses for appellee testified that said statements were made by said Corbin after he received the horse, and when he was about to start to Kokomo. Under the allegations of the third paragraph of answer, Corbin was acting as the agent of appellant in receiving the horse at Bunker Hill and riding him to Kokomo, while under the allegations of the second paragraph of answer he was in such work the agent of Culp. [177 Ind. 637] It is evident that if either Culp or Reddick had received the horse in person, and made the declarations it is claimed that Corbin made at Bunker Hill, and under the same conditions, that said declarations would have been admissible in evidence on behalf of appellee. Corbin's agency in receiving and delivering said horse at Kokomo had commenced and was continuing at the time said declarations were made, and they showed his intention and his mental state in regard to the manner of performing his duties as such agent in riding said horse to Kokomo. What he said and did in the performance of his agency was admissible against his principal. See 2 Chamberlayne, Mod. Law of Ev. §§ 1344-1349; Ohio, etc., R. Co. v. Stein (1892), 133 Ind. 243, 247, 250-255, 31 N.E. 180, 32 N.E. 831, 19 L. R. A. 733; Ball v. Bennett (1863), 21 Ind. 427, 83 Am. Dec. 356.

In Staser v. Hogan (1889), 120 Ind. 207, 220, 21 N.E. 911, 22 N.E. 990, the court said: "The test of whether a fact inquired of on cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as a part of his case? * * * Welch v. State [1885], 104 Ind. 347, 351, 352 [3 N.E. 850]."

It has also been held by this court in Seller v. Jenkins (1884), 97 Ind. 430, 434-439, that while the rule is that evidence contradicting the statement of a witness as to collateral matters is not admissible, it does not apply to any facts immediately and properly connected with the main subject of inquiry. It was said on page 435: "The effect of proving contradictory statements extends no further than the question of credibility. Such evidence does not tend to establish the truth of the matters embraced in the contradictory statements; it simply goes to the credibility of the witness. Davis v. Hardy [1881], 76 Ind. 272; Hicks v. Stone [1868], 13 Minn. 434. This consideration, in [98 N.E. 816] itself, supplies a strong reason for allowing a liberal latitude in cross-examining, for the purpose of laying the foundation for impeachment, for a witness who tells a falsehood concerning [177 Ind. 638] a matter incidentally connected with the subject of the action is as likely to testify untruly as if the falsehood had directly affected the issue. It is difficult to perceive why a material falsehood concerning a matter collaterally related to the main question is not as effective against the credibility of the witness as one immediately bearing upon the question. The courts do not put the rule, that a witness cannot be impeached upon collateral matters, on the ground that the nearer the false statement is to the main issue, the stronger is its effect upon the testimony of the witness; it is put upon an...

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3 cases
  • Reddick v. Young, 22,111.
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1912
    ...177 Ind. 63298 N.E. 813REDDICKv.YOUNG.No. 22,111.Supreme Court of Indiana.May 28, Appeal from Circuit Court, Howard County; L. J. Kirkpatrick, Judge. Action by Henry W. Young against William R. Reddick. From a judgment for plaintiff, defendant appeals. Transferred from the Appellate Court u......
  • Atkinson v. Disher, 22,163.
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1912
    ...voted at the election was a revocation of the powers of attorney theretofore executed by them, for the reason that that was not an issue, [98 N.E. 813]the burden of which shifted to the remonstrators by reason of the answer, but remained to be shown by the applicants, and the question could......
  • Atkinson v. Disher, 22,163
    • United States
    • Indiana Supreme Court of Indiana
    • May 28, 1912
    ...voted at the election, was a revocation of the powers of attorney theretofore executed by them, for the reason that that was not an issue, [98 N.E. 813] the burden of which shifted to the remonstrators by reason of the answer, but remained to be shown by the applicants, and the question cou......

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