Sessions v. Rice

• Decision Date: 13 December 1886
• Citation: 70 Iowa 306,30 N.W. 735
• Parties: SESSIONS v. RICE AND OTHERS.
• Court: Iowa Supreme Court

70 Iowa 306

30 N.W. 735

SESSIONS

v.RICE AND OTHERS.

Supreme Court of Iowa.

December 13, 1886.

Appeal from circuit court, Polk county.

Action upon a promissory note signed by the defendants I. N. Rice & Co. and E. R. Mason. There was a trial to the court, and judgment was rendered for the plaintiff. The defendant E. R. Mason appeals.Whiting S. Clark, for appellant.

J. M. & Geo. E. McCaughan, for appellees.

ADAMS, C. J

The defendant Mason pleaded, in substance, that he was merely surety upon the note, and that I. N. Rice & Co. were principals; that after the maturity of the note the responsibility of the principal makers became doubtful, though they had still sufficient property to pay the note; that, while they were in this condition, he inquired of the plaintiff as to whether the note had been paid, and was told that it had; that he relied upon this statement, and took no steps to protect himself, as he might have done; that afterwards the principal maker became insolvent, and unable to pay the note and that he lost the opportunity to protect himself while relying upon the plaintiff's assurance that the note had been paid; and that the plaintiff, by reason thereof, had become estopped from saying that the note had not been paid.

On the trial, Mason testified that he inquired of the plaintiff as to what situation the note was in, and informed him that he inquired because he did not want to have it coming up against him in the future, and informed him at the same time that he had attached Rice & Co. upon other indebtedness; and that the plaintiff then said that everything between him and Rice & Co. had been settled up satisfactorily to himself. The plaintiff, in his testimony, denied making such statement, but said that Mason said to him: “We are after Rice & Co., and you had better get there too,” and that he (plaintiff) made no reply, as Mason hurried on, and he did not have time to reply.

1. The court, apprehending, probably, that the truth lay somewhere between the two witnesses, and that while the plaintiff did not intend to represent that the note had been settled, but that he did not need to sue, having one good name on the note, put this question to him: “You did not say to Mason you were safe or all right?” and the plaintiff answered: “No, sir; I did not; nor to either of the Masons.” The appellant complains of the asking of this question by the court, and assigns error thereon in these words: “The court erred in cross-examining said Sessions, with leading questions, as to what he told E. R. and J. F. Mason.”

The object of cross-examination is to impair or destroy the effect of what the witness had already testified to. If the court's question, then, was in proper cross-examination, the appellant should not complain. The witness cross-examined was the appellee himself, whose testimony had been wholly for himself. If the object of the court was to break down the testimony, the more leading the question the more favorable for the appellant.

We apprehend, however, after all, that the appellant's counsel does not look upon the question as put in cross-examination, but in direct examination, and in aid of the appellee. In this view only, could any proper objection be interposed to the question as leading. We will look at it in this view, and try to ascertain whether the appellant has any proper ground of complaint. A question is leading which suggests the answer which the interrogator may be supposed to desire. The appellant's objection to this question is that it suggested the answer which was given, and that is, in substance, that the plaintiff did not say that he was safe or all right. But we must look at the whole examination. The witness had already testified that he made no reply. If the court desired to see if the witness would testify to anything different, then the question was asked to give the plaintiff an opportunity to say that he might have said that he was safe or all right; and so the question was hardly leading, as against the appellant. But the witness gave an answer which left his testimony wholly unmodified. The fact that he refused to change his testimony might be considered as giving it emphasis, but it would hardly be claimed that we could reverse upon such ground. We may say, further, that it appears to us that it was of but little consequence to either party which way the question was answered. An affirmative instead of a negative answer would not have supported the appellant's claim of an estoppel. There is, then, nothing in the question of which the appellant can properly complain. We have said more upon this point than we should perhaps have said but for the fact that the appellant's counsel indulges in a criticism of the court which appears to us to be uncalled for.

2. The court made a finding in these words: “It is quite evident that Sessions did not intend to...