Stewart v. Kindel

• Decision Date: 30 January 1891
• Citation: 15 Colo. 539,25 P. 990
• Parties: STEWART v. KINDEL.
• Court: Colorado Supreme Court

25 P. 990

15 Colo. 539

STEWART v. KINDEL.

Supreme Court of Colorado

January 30, 1891

Appeal from district court, Arapahoe county.

In this action appellee, Kindel, as plaintiff below, instituted this suit to recover money alleged to have been paid by him and received by appellant without consideration, by the mutual mistake of the parties. The defendant, in his answer, admits the payment of the money, but denies that the same was paid or received by mistake, or without consideration, and avers that the amount was paid in satisfaction of a just claim against the plaintiff. A trial to a jury resulted in a verdict for the plaintiff.

W. W. Cover, for appellant.

John L. Jerome, for appellee.

HAYT J., ( after stating the facts as above.)

The first four assignments of error, so far as they are urged in this court, relate to the admission of certain evidence upon the trial against the appellant's objections. The testimony thus admitted relates to certain conversations which took place between the parties upon March 24, 1887. A written contract having been subsequently entered into by the parties, it is contended that oral evidence of the prior negotiations was not proper for the consideration of the jury. We do not think this objection well taken. The money sought to be recovered was paid to the defendant by a check upon a certain Denver bank. Had the giving of this check been a part of the agreement evidenced by the written contract there would be some basis for defendant's objection; but whether or not it was intended as a part of that transaction was the vital point in issue between the parties upon which the jury were called upon to pass. The evidence tended to show that the payment was no part of the transaction evidenced by the writings; that it was wholly without consideration, and resulted from a mutual mistake. Under these circumstances, the testimony was competent.

The appellant, a witness in his own behalf in the court below was required, against objection, upon cross-examination, to answer certain questions tending to show the existence of an unfriendly feeling between the parties, and this is assigned for error. It is one of the objects of cross-examination to show the relation existing between the witness and the party against whom, as well as the party for whom, he is called. And it can make no difference if the witness himself happens to be a party; anything tending to show either bias or prejudice, or to throw light upon the motives and inclinations of the witness, may be permitted, in order that the jury may be assisted in determining the weight that should be given the testimony of the witness. No doubt the extent of the inquiry rests somewhat in the discretion of the trial court. An investigation into particulars beyond what appears to be necessary to ascertain the nature and extent of the hostile feeling should not, of course, be permitted. In this case counsel were allowed to go to some extent into the details and particulars of such ill will, and, we think rightfully so. The fact that the witness admitted the existence of ill feeling or prejudice against the plaintiff, did not preclude an inquiry into the extent or intensity of such ill feeling, nor a cross-examination as to the character and degree of such prejudice. State v. Collins, 33 Kan. 77, 5 P. 368; State v. Dee, 14 Minn. 35, (Gil. 27;) Batdorff v. Bank, 61 Pa. St. 179; McFarlin v. State, 41 Tex. 23; Thomp. Trials, §§ 450, 451. ...