Cahoon v. West

20 Utah 73 | Utah | 1899

Bartch, C. J.

This is an action on an official bond against the principal and sureties, to recover damages for the alleged wrongful taking and disposing of certain goods claimed by the plaintiffs. It appears from the record that the goods in question, consisting of whiskey and other liquors, originally belonged to one R. H. Winder, a saloon keeper, and, the plaintiffs claim, they were turned over to them in part payment of a debt owed them by Winder. The defendant West, as constable, under an attachment proceeding, in an action commenced before a justice of the peace by the Murray Meat & Live Stock Company against R. H. Winder, made a levy on the goods and afterwards sold the same on execution. At the trial of this cause the plaintiffs recovered judgment against all of the defendants who thereupon appealed.

The decisive question, as to this appeal, is whether the court erred in sustaining plaintiff’s objection to certain questions asked the witness Winder on cross-examination. The witness, who was the defendant in the attachment suit, in his examination in chief, was asked questions and testified in part, as follows:

' “Q. You are the party who made the bill of sale to J. P. Cahoon & Bro., are you?

“A. Yes, sir.

“Q. You were then engaged in the liquor business at Murray, were you ?

“A. Yes, sir.

“Q. Were -you familiar with the value of liquors at that time and at that place ?

“A. Yes, sir.”

On cross-examination the witness was asked, among others, the following questions: “That bill of sale was given by you to J. P. Cahoon & Bro., was it? Mr. Winder, were these goods mentioned in the bill of sale delivered by you to John P. Cahoon & Bro. on the date mentioned in the bill of sale? Were those goods mentioned in this bill of sale moved from the place where they were found on the day of this transaction, or were they left in the same place, or any of them left in the same place where they were found by J. P. Cahoon & Bro. when they were there on the morning of the second of August ? ” We are of the opinion that the action of the court, in refusing to permit the witness to answer these questions on cross-examination was erroneous and prejudicial to the rights of the appellants. These and other similar questions, suggested in the offer of proof by counsel for the defendants, were intimately connected with the subject matter of the examination in chief, and were calculated to test the bonafides of the bill of sale. The witness was the defendant in the attachment suit, which was commenced on the day after the bill of sale was alleged to have been made, and, in his examination in chief stated that he made the bill of sale to J. P. Cahoon & Bro., was in the liquor business and acquainted with the value of liquors.

The witness was shown to be the owner of the goods, and when he stated that he “made the bill of sale to Cahoon & Bro.” it was tantamount to saying that he not only executed the paper writing but delivered the goods, for without delivery of the goods there could be no valid bill of sale which would affect the rights of other creditors. The appellant, therefore, was entitled to cross-examine the witness concerning all matters connected with that transaction to ascertain whether or not a valid bill of sale had in fact been made as testified to by the witness. “A witness may be cross-examined as to his examination in chief in all its bearings.” 1 Whart. on Ev. Sec. 530.

Mr. Rice, in his work on evidence, Vol. 1, p. 585, says: “On cross-examination counsel should be allowed a free range within the subject-matter of the direct examination; and wide latitude should be given to a party who has to prove a negative; or to one examining a witness who was a participant in an alleged fraud.” And again, on page 586, the author says: “The cross-examination of a witness cannot be confined strictly to the precise subjects called to his attention upon his direct examination, but should be allowed to extend to any matter not foreign to the subject-matter of such examination, tending to limit, explain or modify.”

In the case at bar the good faith of the transaction in which the witness was the principal actor, was directly involved, and therefore a wide range ought to have been permitted on cross-examination. Detroit & Milwaukee R. R. Co. v. Steinberg, 17 Mich. 99; Jacobsons. Metzger, 35 Mich. 103; Kalk v. Fielding, 50 Wis. 339; Baird v. Daly, 68 N. Y. 547.

We do not deem it necessary to consider or pass upon any other point presented. The judgment must be reversed and the cause remanded with directions to the court below to grant a new trial.

It is so ordered.

Minee, J., and Baskin, J., concur.