Wilbur v. Flood

• Decision Date: 11 July 1867
• Citation: 16 Mich. 40
• Court: Michigan Supreme Court
• Parties: James Wilbur v. Luther J. Flood

16 Mich. 40

James Wilbur v. Luther J. Flood

Supreme Court of Michigan

July 11, 1867

Heard July 10, 1867

Error to St. Joseph circuit.

This was an action of replevin to recover the possession of certain chattels which Flood had exchanged with Wilbur for lands he, Wilbur, had failed to convey. Judgment was rendered for the plaintiff.

The case was removed by writ of error and bill of exceptions. The facts and rulings of the court below are stated in the opinion.

Judgment reversed, with costs, and a new trial granted.

H. F Severens, for plaintiff in error:

1. It is competent to ask a witness on cross-examination, whether he has ever been confined in the state prison.

It is obvious that the purpose of such a question is to discredit the witness before the jury, by showing him to have been guilty of some criminal offense. It is not the imprisonment but the guilt, that fixes the stain. This can only be shown by the record of conviction: 1 Greenl. Ev., § 457; 24 N. Y., 298; 46 Barb. 127.

2. Before the plaintiff could bring replevin, he must rescind the contract. This, it is claimed, on the part of the plaintiff, was done, so far as it could be done by him, by tendering the reconveyance to Wilbur. But this was not done until after the issuing of the writ. A plaintiff cannot get out his writ, and then make the cause of action for which he sues. The suit is commenced by the issuing of the writ: Comp. L., §§ 4108, 5010; 1 Doug. 330; 3 Mich. 531; 10 Id. 508.

3. The testimony of the plaintiff showed that he ascertained the facts on which he claimed to rescind, in June, 1864; and, also, that he did nothing toward rescinding until September, 1865--fifteen months. Assuming these facts to be true, the court should have charged, as matter of law, that the plaintiff did not rescind within a reasonable time: 4 Mich. 508; 2 Pars. on Cont., 190, and n. i, 3d ed., and 277-8-9, and notes; 2 Denio 136; 14 Barb. 594; 21 Id. 82; 6 Metc. 68, 74; 9 Gill. 156; Chitty on Cont., 814, 10th Am. ed.; 7 Blackf. 501.

If the jury found the facts assumed in the request, they presented a question of law upon which direct instruction should have been given: 4 Mich. 336; 5 Id. 501.

If the question was a mixed one of law and fact, the request was proper.

4. If it is not correct to say that this question of reasonable time was one of law, then there was error in charging that the plaintiff did tender the reconveyance within a reasonable time. The question, if one of fact, was for the jury. See authorities cited under third point, and 3 Greenl. 30; 4 Fost. N. H., 282.

The mere "offer to trade back," and refusal on the part of defendant, was very far short of attempting a rescission.

Soule, Mason & Allison, for defendant in error.

Campbell, J. Christiancy and Cooley, JJ. concurred. Martin, Ch. J. did not sit.

OPINION

Campbell J.:

An action of replevin was brought by Flood against Wilbur, to recover certain chattels which Flood had exchanged with Wilbur for lands which the latter had failed to convey, having substituted a different description. The facts, as claimed, were in substance these: In exchange for the horses, wagon and harness, which are the subjects of this suit, Wilbur was to deed a clear title to the northeast ten acres of a certain forty-acre lot which he said he owned. About the beginning of June, 1864, Wilbur gave Flood a deed of an undivided fourth of the forty acres, instead of the specified ten acres, and it was four or five days before the latter discovered the error, when he "offered to trade back, and Wilbur would not do it."

No further steps appear to have been taken until this suit was commenced. The affidavit was made September 2d, 1865, and the writ issued September 5th, and delivered to plaintiff's attorneys. On or about the 18th of September, a clerk of the attorneys went with the sheriff to Wilbur, and tendered him a deed of the premises which he had conveyed to Flood. Upon his refusal to accept it, the clerk gave the writ to the sheriff, who served it.

Defendant was sworn as a witness in his own behalf, and controverted the plaintiff's case. Upon cross-examination he was allowed, against objection, to be asked whether he was ever confined in the state prison, and an exception is taken to this ruling. It is claimed to have been erroneous, as an attempt to discredit the witness by improper means, and to prove by parol what rests in record evidence. We do not think the objection tenable. It has always been found necessary to allow witnesses to be cross-examined, not only upon the facts involved in the issue, but also upon such collateral matters as may enable the jury to appreciate their fairness and reliability. To this end a large latitude has been given where circumstances seemed to justify it, in allowing a full inquiry into the history of witnesses, and into many other things tending to illustrate their true character. This may be useful in enabling the court or jury to comprehend just what sort of person they are called upon to believe, and such a knowledge is often very desirable. It may be quite as necessary, especially where strange or suspicious witnesses are brought forward, to enable counsel to extract from them the whole truth on the merits. It cannot be doubted that a previous criminal experience will depreciate the credit of a witness to a greater or less extent, in the judgment of all persons, and there must be some means of reaching this history. The rules of law do...