Carlyle v. Plumer

| Wis. | May 4, 1860

By the Court,

Paine, J.

This suit was brought to recover on a note, and for goods sold, and for rent, all of which were due from Washington Plumer & Co. The only contest was with the defendant, Francis Plumer, who denied that he was a member of the partnership. The verdict and judgment were for the plaintiff, and Francis Plumer appealed.

We will proceed to notice the several exceptions relied on in the brief of the appellant’s counsel.

The first is, that the court below erred in permitting the plaintiff’s counsel to ask one of his witnesses a leading question. The witness, Woodbury, testified that he had heard frequent conversations between Washington and Francis Plumer, and specified one which occurred outside of Carlyle & Dowse’s store, on a salt barrel.. The question was then asked: “What was said about a copartnership between the parties ?” This was objected to as leading, but admitted by the court, and we think it was properly admitted. The question cannot be said to be a leading question. It does not suggest the answer. It is not capable of being answered by a simple affirmative or negative. It only calls the attention of the witness to the particular subject, and then asks what was said in regard to it. There might' be circumstances where a court, in the exercise of its sound discretion in regard to the form in which questions may be put, should exclude a question even alluding so generally to the subject matter of the conversation. But we see nothing of the kind in this case. And on the contrary, the question seems to be only of that kind which are permissible, “ to abridge the proceedings, and bring the witness, as soon as possible, to the material points on which he is to speak1 Greenle'af’s Ev., § 434; even if the permitting a leading question to be asked can be made a sufficient reason for reversing a judgment in any case; we therefore do not think the question here asked was liable to that objection.

The next exception urged is to the refusal of the court to allow the defendant’s counsel, on cross-examining the witness, to prove Washington Plumer’s admissions. He was clearly entitled to the entire conversation, as to which the witness had testified in chief. But this was not what the defendant enquired for. . On the contrary, he asks for Washington Plumer’s admissions generally, without limiting the inquiry to any conversation which the plaintiff had called out. The judge was clearly right in excluding the evidence. Parties are not entitled to prove in their own favor, whatever they or their co-defendants may state.

• The next exception is to the admission of the deposition of William Cromwell. One ground of objection is, that the commissioner was not named in the rule, or in the commission, when issued, but that his name was afterwards inserted. It appears from the record, that the defendant’s attorney admitted on the trial that “the commission was so issued in blank by his consent, and that the name was to be inserted when ascertained.” That being so, he could not be heard to object, for that reason. But the counsel urges that this consent that the commission issue in blank, cannot be construed into a consent that the rule for a commission be entered without naming the commissioner. But, surely, a party consenting that the commission might issue in blank, and joining in it, by filing cross-interrogatories, must be deemed to consent that the rule may be accordingly. For to insist that the commissioner should be named in the rule, would be repugnant to his consent, and make it of no avail. If the other party knew the name of the commissioner to insert in the rule, he could of course insert it in the commission. A consent of this kind should be construed by the court, as the other party had a fair right to construe it. And we think in this case, they had a fair right to construe it as a waiver of the commissioner’s name in the commission, and in every thing incidental to it, until it could be ascertained.

It was also objected that the answers of the witness were reduced to writing by himself, instead of the commissioner. We do not think this any ground of objection. Certainly, a witness can write his own answers, as well as any one can write them for him. And it would seem in fact to be the most certain and accurate way of obtaining his actual words.

We think, also, that the fact that the clerk did not give notice to the parties that the commission was returned, executed as directed by rule 62, does not render the deposition inadmissible. This is a direction which the clerk of course should have complied with, but his neglect to do so ought not to deprive the parties of their substantial rights, which might be entirely dependent upon the admissibility of the evidence.

In short, the objections taken to this deposition seem to us of an entirely unsubstantial character. And that it was not the intent of the law that substantial rights should be sacrificed to unsubstantial objections, is evident from the fact that sec. 28 of chap. 98, R. S., 1849, provides that depositions taken out of the state, in any other manner than that already prescribed, might be admitted at the discretion of the court, if the opposite party should appear to have had proper opportunity for cross examination.

The defendant also offered in evidence certain notes and a mortgage executed by Washington Plumer to him, which he claimed to have been given as security for all the moneys he had advanced, and also offered to prove his own declarations that he was not a partner. Upon the latter part of the offer it is unnecessary to say anything, and we do not think the notes and mortgage tended to show that there was no partnership.

But it is said the court erred in holding that the averment of partnership in the plaintiff’s complaint was sufficient to prove the fact, unless “ denied by the affidavit of the defendant.” The court said it would have been sufficient if it had not been denied, but then told the jury expressly, that it was denied, and that the burden of proof was on the plaintiff to establish the partnership by evidence. This was all the defendant could ask. And what the court said about what would have been the effect of the averment in the complaint, under a different state of facts, was entirely immaterial, and could have no tendency to mislead the jury,-even if incorrect.

We can discover no error, and the judgment is affirmed, with costs.