Thompson v. Gregor

• Decision Date: 16 October 1888
• Parties: THOMPSON v. GREGOR.
• Court: Colorado Supreme Court

19 P. 461

11 Colo. 531

THOMPSON v. GREGOR.

Supreme Court of Colorado

October 16, 1888

Commissioners' decision. Appeal from district court, La Plata county.

O. S. Galbreath, Hoffmire & Davidson, and Markham & Dillon, for appellant.

Russell & McCloskey, for appellee.

DE FRANCE, C.

The plaintiff, Gregor, brought this action against the defendant Thompson, upn two promissory notes executed by the defendant in favor of the plaintiff. The defendant admitted the execution of said notes, but set up the defense that the consideration for which said notes were given had wholly failed. The action was brought in the county court of La Plata county, and from there appealed to the district court of said county. The trial in the latter court was before a jury, and resulted in a verdict and judgment for the plaintiff, Gregor. The defendant, Thompson, has appealed to this court, and his assignment of errors is as follows '(1) The court erred in refusing the instructions asked by defendant, to the effect that plaintiff below was bound by the deposition of W. T. Keyes, which he read in evldence. (2) The court erred in allowing plaintiff below to impeach the credibility of W. T. Keyes, without first laying grounds by interrogating said witness as to his former statements giving time and place. (3) The court erred in refusing to instruct the jury to make the special findings asked for. (4) The court erred in refusing a new trial because the verdict was against the weight of the evidence.'

The fourth error assigned is not insisted upon in the argument.

It appears that two depositions of one W. T. Keyes were taken in this cause by the defendant. At the trial the defendant read the one taken last, in evidence. In rebuttal, the plaintiff offered the former one in evidence, for the purpose of showing that the witness Keyes had made contradictory statements therein, in material matters, to those made by him in the latter. The defendant objected to its introduction, 'because the plaintiff did not lay any ground for contradicting the witness.' This, being the only objection made, was overruled by the court, and the deposition was read in evidence. The court refused the following instruction asked by defendant: 'Defendant asks the court to instruct the jury that plaintiff is bound by the statement contained in the deposition of W. T. Keyes read by him, as by reading the same he put it in evidence and vouched for its credibility.' The first and second errors assigned relate to the refusal of the court to give this instruction, and to the admission in evidence of the deposition of Keyes, offered by the plaintiff, and the two will be considered together.

The court committed no error in either of these rulings. The...