Young v. Smith
| Decision Date | 31 July 1857 |
| Citation | 25 Mo. 341 |
| Parties | YOUNG et al., Plaintiffs in Error, v. SMITH et al., Defendants in Error. |
| Court | Missouri Supreme Court |
1. Courts may regulate in their discretion the order in which testimony shall be received; hence, it is not error to refuse to permit a plaintiff to read to the jury as evidence in chief portions of a deposition taken by himself, and to reserve the remainder as rebutting testimony.
2. Great latitude is allowed in the cross-examination of witnesses.
3. In a suit against A. and B. as partners, the declarations of A. are inadmissible in behalf of B. to disprove the partnership alleged.
4. Persons may be held liable as partners to third persons, though not as partners as between themselves.
Error to Jackson Circuit Court.
The facts sufficiently appear in the opinion of the court.
Hovey, for plaintiffs in error.
I. The Circuit Court ought to have permitted the plaintiffs to read a part of Smith's deposition in chief, and to reserve a part as rebutting evidence, because the portion sought to be read was strictly evidence in chief, and the portion sought to be reserved was strictly rebutting evidence, and not necessary to the narrative of the witness.
II. The court below ought to have stricken out all that part of the cross-examination of C. M. Smith commencing at the sixth interrogatory, and from thence to the end of his deposition, because the same was neither a legal cross-examination nor competent evidence in chief for the defense. (1 Greenl. Ev. secs. 448-9.)
III. The acts and conversations of Smith and Huffaker, between themselves or others, were incompetent evidence when offered in defense, because the same were neither a part of the res gestœ, nor facts of which third persons were presumed to have notice. (Story on Partnership, sec. 63; Winship v. U. S. Bank, 5 Peters, 529; Allen v. Duncan, 11 Pick. 308; Woods v. Clark, 24 Pick. 35.) The defendants could not be witnesses for each other, therefore, their unsworn statements, as introduced by defendants, are only the more illegal. (1 Greenl. sec. 329.)
IV. The court below ought to have given the first instruction asked by plaintiffs.
V. The court below ought to have given the ninth and tenth instructions asked by plaintiffs. (Story on Partnership, sec. 63; Dennistown et al. v. Debuys et al., 9 Mart. 26.)
VI. The court below erred in giving the second instruction asked by defendants, because the same is argumentative, and permits the jury to discard evidence upon their own private prejudices outside of the testimony. (2 Starkie Ev. 686; 1 Greenl. Ev. secs. 34, 35.)
Napton, for defendants in error.
I. To determine the order in which testimony shall be received, is within the discretionary regulation of the Circuit Court, and unless some manifest injustice has resulted from the exercise of this discretion, the Supreme Court will not interfere. It is not easy to see how the merits of this case could have been affected, one way or the other, by the order in which the depositions, or portions of them, were read. (Rucker v. Eddings, 7 Mo. 115.)
II. There was no error in refusing to strike out the cross-examination of Smith. Such examinations are designed to question the veracity, or memory, or honesty of the witness, or explain, or modify, or refute, his statements, and the greatest latitude is allowed, and extraneous and collateral inquiries may be made, subject to the restriction that a matter entirely foreign to the issue cannot be inquired into merely with a view to contradict what the witness may testify to on such collateral matter. (1 Greenl. Ev. §§448-9; 2 Phil. Ev. pp. 726, 733.)
III. The testimony for defendants in relation to the acts and sayings of Huffaker and Smith were legitimate proof. 1st. They constituted the res gestæ, and apart from the fact that Smith was a party to the suit, and viewing him as a mere stranger, his acts and declarations were evidence for Huffaker. The material question in this case was whether a partnership existed between Smith and Huffaker. This was affirmed on one side and denied on the other. The acts of Huffaker and Smith during the period of the alleged partnership, in the course of the trade in which they were certainly engaged, and the declarations of either explanatory of those acts, and cotemporaneously made with them, are evidence. They are verbal acts. . 2d. These acts and declarations were legitimate as rebutting testimony. 3d. They were legitimate to impeach the witness, Smith, who was also a party, and adverse to his co-defendant in fact (see 1 Greenl. §462); and even if improperly admitted, they are no ground for reversing the judgment on the last head.
IV. The ninth and tenth instructions asked by plaintiffs, and refused by the court, raise the same point as the motions to exclude evidence in the progress of the trial, and, therefore, have been considered already.
V. The first instruction asked by plaintiffs was rightly refused. It was either an abstraction outside the case, or it was calculated to mislead the jury. It was virtually telling them that whatever opinion they might entertain about a secret partnership between Huffaker and Smith (which, as the court will see, was the only point in dispute), they would still find for plaintiffs. In short, this instruction assumed as a conceded fact a matter about which there was no proof, viz: that Huffaker held himself out to the world as a partner; thus shifting the entire basis of the controversy.
VI. Instruction No. 2, given for defendants, is unobjectionable, as will appear from inspection.
VII. There is nothing in the point relative to newly discovered testimony.
VIII. Smith was not a competent witness. The case of Rich v. Hasson, 4 Sanf., N. Y., 115, under a similar statute, has so decided.
We do not perceive what injury the plaintiffs below received by the court's overruling their motion to be permitted to read only certain portions of the deposition of the defendant, Smith, which the plaintiffs had taken, to the jury, as evidence in chief, and afterwards to be permitted to read the balance of the deposition as rebutting testimony. We will not interfere in the discretionary determination of the lower court, in such matters, especially where no injury appears to follow to either party. To say the least of this objection to the ruling of the court below, it is captious, and we give countenance to no such practice. The plaintiffs may begin their evidence at either end of the case; but when they offer a deposition, and the court holds the same to be legal evidence, then the court may refuse with great propriety to let them pick out and read certain portions at one time, and other portions at a different stage of the trial, to gratify the whim or taste of their counsel.
As to the plaintiffs' second point about the cross-examination of Smith, we do not see how the overruling their motion to strike out certain parts of this deposition can injuriously affect them. Smith was their witness. They gave sanction to his veracity by taking his deposition; and although the plaintiffs are bound, in proof of their case, to confine themselves to evidence relevant to the matters in issue, and the defendants restricted to the same, yet in cross-examinations questions as to collateral facts are often allowed; nor is the rule confining the proof to the allegation strictly followed in cross-examinations, but great latitude of interrogation is permitted at times. In Lawrence v. Baker, 5 Wendell, 305, Savage, Ch. Justice, in delivering the opinion of the court, said: “A witness is not to be cross-examined to a distinct collateral fact for the purpose of afterwards impeaching his testimony by contradicting him.” (1 Starkie, 134.) There may be cases where great latitude of examination may be permitted, arising from disposition, temper and...
To continue reading
Request your trial
-
Deevers v. Lando
... ... (Mo. App.) 268; Zugg v. Arnold, 75 Mo.App. 68; ... Whipple v. McIntyre, 69 Mo.App. 397; Beckley v ... Skroh, 19 Mo.App. 75; Smith v. McConathy, 11 ... Mo. 517; Nuisances, 20 R. C. L. 423; Nuisances, 20 R. C. L ... 425-427, 448-449. (16) Cooking or baking is not a nuisance ... out all the facts and for the purpose of affecting his ... credibility as a witness. Young v. Smith, 25 Mo ... 341; Bank v. Richards, 119 Mo.App. 18; Israel v ... R. R., 239 S.W. 81; McCoy v. Hill, 246 S.W ... 582, 584 (3); Witnesses, ... ...
-
Frederick v. Allgaier
...certainly competent on cross-examination of the plaintiff, the party charged with the fraud. Whart. on Evid., secs. 547 and 548; Young v. Smith, 25 Mo. 341. (3) Where a vendor sells property with the intent to hinder, delay or defraud his creditors, and the vendee purchases, because he is g......
-
Smith v. Shotliff
...was not competent to disprove his written admission and should not have been admitted by the court. Clark v. Huffacker, 26 Mo. 264; Young v. Smith, 25 Mo. 341. George Hubbert, M. E. Benton and Farrington, Pepperdine & Wear for respondent. (1) In the outset appellant was charged with the bur......
-
Keim & McMillan Hardware Co. v. Williams
...or so represents himself to a person who is doing business with the firm he will be treated as a partner as to that person. Young v. Smith, 25 Mo. 341; 1 on Partnership, page 54; Gamble v. Grether, 108 Mo.App. 340; Hahls v. Mayer, 102 Mo. 93; Ins. Co. v. Kountz Line, 122 U.S. 122; 30 Law Ed......