73 N.J.L. 790 | N.J. | 1907
The opinion of the court (the foregoing statement having been made) was delivered by
I. a. Counsel for the plaintiff in error first objects to the question addressed to the witness Davis, that it was not proper cross-examination, the gist of the objection being that the question did not relate to matters brought out on the examination-in-chief, but tended to establish the defendant’s ease substantively by cross-examining the plaintiff’s witness, and that this course is not allowed by our practice. See Donnelly v. State (1857), 2 Dutcher 601, 610; Dennis v. Van Voy (1864), 2 Vroom 38, 40, 41. Without casting the slightest doubt upon the value of these cases, we may be permitted to think that they are not now controlling.
(1) It must be borne in mind that Davis was originally examined as a witness in the action of Shreve v. Crosby; was produced on the part of Crosby, and was cross-examined on behalf of Crosby’s adversary. In order to save time and expense, it was agreed (the same aitones being employed) that the testimony “might be used” in three other pending actions, one of which is that now under investigation. In this action Davis was the witness of Crosby’s adversary, the defendant, Wells, and the question addressed to Davis and the answer given by him are naturally and legitimately to be regarded as part of his examination-in-chief. They would have plainly appeared in that light if they had been taken down in writing in this action.
(2) If, however, it be preferable to regard the question
“Provided that notice in writing of the time and place of such examination and the names of the witnesses to be examined be given to the adverse party, his attorney or solicitor, that he may be present and put interrogatories, if he shall see fit.”
A provision of similar import appeared in section 1 of the act of March .17th, 1862 (Pamph. L., p. 226); was amended and carried into section 38 of “An act concerning evidence,” approved March 27th, 1874, and now, as part of section 45 of the act of 1900, above quoted, affects the practice of taking the testimony of a witffess out of this state otherwise than by commission. It accords with the language of the act and of the customary notice (Bess. L. Prec. 248), and with the practice of the bar, that the attorney of the adverse party, in questioning the witness, should not be bound by the strict rules of cross-examination, but may put such questions as may legitimately tend to. establish his cause of action or defence.
The matter inquired into in the present case was admissible. The question was meant to bring out a fact which would be a link in the chain of proofs tending to maintain the position of the defence. The chain would be this: Knowledge by Davis of the actual productiveness and value of the oil land in question; meeting of Davis and the plaintiff, Crosby, when the latter visited the oil land; the acquiring by the plaintiff of the true facts as to the land and its productiveness, which bore, upon the value and profitableness of the stock; representations by the plaintiff to the defendant contrary to known facts; fraudulent character of such representations; propriety of the .rescission of the cpntract based on such rep re
I. b. The counsel for the plaintiff in error again objects to the question addressed to Davis that the subject-matter was not one for expert testimony. It may be that the matter was not to be settled by expert testimony, if we give to that phrase a strict and scientific meaning. Nevertheless, we incline to the view that it was one for the offer of opinion evidence under another exception to the so-called opinion rule. It is not now needful for us to adopt a perfect and all-embracing definition of the phrase “opinion evidence.” There is, for example, one kind of such evidence discussed in Koccis v. State (1893), 27 Vroom 44, 47, and illustrated in Castner v. Sliker (1869), 4 Id. 507 (at p. 509). But with-this we have now no concern. For present purposes, opinion evidence is that which is given.-by a person of ordinary capacity, who has, by opportunity for practice, acquired a special knowledge which is outside of the limits of common observation, and which may be of value in elucidating a matter under consideration. The experiential qualifications of the witness — including his opportunity to- observe the very thing under inquiry — being first shown, his special knowledge may be imparted in aid of the jurors at the trial, under questions in ordinary form. The definition above given is supported by Wigm. Evid., §§ 556, 558, 1917 (4), 1918, 1925; 17 Cycl. L. & Pro. 37, 41, 123; Best Ev. (10th Eng. ed.), § 513; Tayl. Ev. (9th Am. & Eng. ed.), §§ 1416, 1420; New Jersey Traction Co. v. Brabban (1895), 28 Vroom 691, 694; Wheeler & Wilson Co. v. Buckhout (1897), 31 Id. 102, 105; Elvins v. Delaware and Atlantic Telegraph and Telephone Co. (1899), 34 Id. 243, 247; State v. Arthur (1904), 41 Id. 425, 427; State v. Laster (1904), 42 Id. 586, 588. The inquiry preliminary to the giving of opinion evifierce is indicated in Wigm. Ev., §§ 560, 1928; 17 Cycl. L. & Pro. 123; Tayl. Ev. (9th ed.), § 1417; New Jersey Traction Co. v. Brabban, supra; Wheeler & Wilson Co. v. Buckhout, supra (at p. 104); State v. Arthur, supra.
Applying the definition and the illustrative decisions to> the case in hand, we perceive that Davis possessed, to the satisfaction of the trial court, the necessary experiential qualifications; that neither could the actual productiveness and value of the oil land in question be effectively described to the jurors, nor could they exercise powers of comparison and judgment respecting this and other lands; and that suchproductiveness and value, affecting materially 'the value of/the oil company’s shares, and the knowledge thereof 'were, as already noted,'links in the chain of proof tending to support the position of the defence.
. We conclude, therefore, that the question addressed to Davis was not objectionable from either of the standpoints of the plaintiff in error.
II. The second contention of the plaintiff in error is that a verdict should have been directed for him in the' court below, alleging two reasons therefor.
In our country, a verdict may be directed for a plaintiff as' well as for a defendant. See Commissioners of Marion
The plaintiff in error thinks that, these tests being applied, his motion should have been allowed, alleging that there was no evidence of fraud in him — thus cutting away the right of rescission — and that any offer to rescind was incomplete— thus cutting away an actual rescission. He evidently relies upon Byard v. Holmes (1868), 4 Vroom 119, 126, which holds that the injured party must not only show a right to rescind, but that the contract has in fact been rescinded. Without doubting this case, we may remark that, from the difference in the underlying facts, it docs not help the plaintiff in error.
On the point of fraud, affecting the right to rescind, it may be remarked that fraud must indeed be proved, not presumed; nevertheless, it may be inferred from other facts. See Best Ev. (10th Eng. ed.), § 349; Van Pelt v. Veghte
On the point of actual rescission, it must be borne in mind that a vendee who has a right to rescind must, if property has been delivered to him, either (a) return it to the vendor, or (b) offer to return it, or (c) give notice of its rescission. See Smalley v. Hendrickson (1862), 5 Dutcher 371, 373; Starr v. Torrey (1849), 2 Zab. 190, 196; Pidcock v. Swift (1893), 6 Dick. Ch. Rep. 405, 408; affirmed, 8 Id. 238; Henninger v. Heald (1894), 7 Id. 431, 437; affirmed, 8 Id. 694. One or the other of the foregoing things must the
We think that, as to both the right and the fact o,f rescission, the trial judge could not have done otherwise than submit the evidence to the jury, and the contention to the contrary must fail.
The printed case shows bills of exception, signed and sealed, upon refusa-l to exclude questions addressed to the plaintiff concerning sales of shares or offers to sell shares to Arvine H. Phillips and Caleb E. Shreve, but none as to questions concerning sales to persons other than they. We shall not, therefore, consider the legality of any such questions except those embraced in the bills. See Davis v. Littel (1900), 35 Vroom 595, 596; Conrad v. Brocker (1904), 41 Id. 823; also, Ward v. Ward (1850), 2 Zab. 699, 710, 711.
Assuming now that the plaintiff in error has brought forward a legal principle which is of force in the trial of a civil action (whatever may be the case in the trial of an indictment), we do not see that the plaintiff has been aggrieved by any disregard of it. We may not forget that, in theory, one of the objects of cross-examination is to bring out facts (suppressed or undeveloped in the examination-in-chief) which diminish the trustworthiness or impeach the credit of the witness. See Wigm. Evid., § 1368 (1); Derrickson v. Quimby (1881), 14 Vroom 373, 376.
In 'the testimony of the plaintiff, when interrogated by his own counsel, he not only-gave answers which served to show that he had not sold any of the Ohio oil shares to the defend
We are not constrained to justify the cross-questioning of the plaintiff by the principle of judicial discretion, although we might, point to Disque v. State (1887), 20 Vroom 249, 250, as an instance of the approved exercise of such discretion. In the present case it is evident that inquiry about the sales of shares before August 8th, 1901, to other persons, such as Phillips and C. E. Shreve, would have a tendency to diminish the force of the plaintiff’s testimony or' impeach his credit, and therefore it was a proper and legitimate inquiry under the rules governing cross-examination.
III. b. The counsel for the plaintiff in error objects, in the same connection, that it was error to permit the examination of Phillips, the two Shreves and Stadler (witnesses sworn for the defendant in rebuttal), about their dealings with the plaintiff, because such testimony was irrelevant or was a part of the defendant’s principal case.
There are no assignments of error covering the admission of testimony given by Caleb E. Shreve or Ferdinand Stadler. In order to, the review of an alleged irregularity in the trial court, error should be assigned therefor, and the ground of error should be definitely pointed out. See 1 Arch. Pr. (2d Eng. ed.) *250, *272; Palm. Pr. 128; State, Hoey, pros., v. Lewis, Collector (1877), 10 Vroom 501, 507; Lutlopp v. Heckman (1903), 70 Id. 272, 273. Hence, under the circumstances of this case, we shall not look at anjr irregularity which may have occurred in the giving of the testimony of the two witnesses last above named.
(1) Whether the matter of defence was such as might be given in evidence under a plea of the general issue, or was proper to enter into a special plea or notice of special matter, is not before us for consideration.- The question is whether
An evidentiary fact, whether simple or complex, is relevant when it has probative value in support of a material proposition of one of the parties. See Wigm. Evid., §§ 2 (1), 12, 29. Evidence is also said to be relevant when it is directed and confined to the matters in dispute between the parties, as shown by the pleadings. See Best Ev. (10th Eng. ed.) 228; Marsh v. Newark H. & V. Mach. Co. (1894), 28 Vroom 36, 42.
The main proposition of the defendant was this: There can be no recovery upon the note in suit, because of the total failure of consideration. But underlying this were these further propositions: The consideration was an executed contract of sale of oil shares; this contract of sale was procured by fraudulent representations of fact; the contract was rescinded before suit. The defendant was interested in maintaining these propositions. The plaintiff met them with the counter-propositions following: There had been no fraud in me, and there had been no sale by me. The second counter-proposition he endeavored to support by evidence going to show that before the trial he had never sold any such shares to any person.
To show, then, by the testimony of others, that the plaintiff had had dealings with them in respect of such oil shares within the time mentioned was relevant in that it tended to discredit the testimony of the plaintiff with respect to his recollection and his truthfulness (Wigm. Evid., §§ 1004, 1005), and in that it weakened, in the same degree, his denial of a sale by himself to the defendant. Under this principle— which is, in brief, that of the impeachment of a witness bv contradiction from others — the testimony was, indirectly if not directly, of value in support of a material proposition of the defendant. See the views of this court in Lambeck v. Stiefel (1904), 42 Vroom 320, 321, upon the improper rejection of a letter written by the plaintiff to a third person,
(2) Whether the testimony of the witnesses, Phillips and E. T. Shreve, in rebuttal, should have been given as a part of the defendant’s principal ease is of no present consequence inasmuch as it would appear that the door was opened for its admission in contradiction of the plaintiff in error by evidence given by the plaintiff himself in rebuttal of the defendant’s ease.
Assuming, however, that the offer of the testimony was ill-timed, we may nevertheless dispose of the objection to receiving it, on the ground of judicial discretion. The conduct of the trial and the general course of the examination of tire witnesses rest within the sound discretion of the trial judge, aird the exercise of such discretion is not reviewable on writ of error. See State v. Fox (1856), 1 Dutcher 566, 602; Trade Insurance Co. v. Barracliff (1883), 16 Vroom 543, 545; Bodee v. State (1894), 28 Id. 140, 142; Hustis v. Banister Company (1899), 34 Id. 465, 467; Foley v. Brunswick Traction Co. (1903), 40 Id. 481, 482, and Luckenbach v. Sciple (1905), 43 Id. 476, 478.
The above objections taken to the testimony of Mr. Phillips and Mrs. Shreve cannot avail the plaintiff.
IV. The next objection raised by the plaintiff in error is that if it were true that he had offered oil shares for sale to persons other than the defendant, it was not evidential that he had entered into a contract of sale with the defendant.
In some other aspects we have already considered the propriety of the testimony drawn from the plaintiff on1 cross-examination, and from the witnesses Phillips and E T. Shreve, touching dealings in these oil shares between the plaintiff and third persons. So far, then, as this objection questions, the admissibility of the offers to sell on the ground that the proof goes merely to contradict the plaintiff on an immaterial point, we need to' do nothing more than repeat what has already been said. The plaintiff, however, urges, further, as to the evidence of the offers of such shares to third persons, that “it is like an effort to prove one crime by show
At least as long ago as Clark v. State (1885), 18 Vroom 556, 558, and as recently as the case 'of State v. Hummer, ante p. 714, this court has said that, for the purpose of showing a defendant likely to commit a crime charged, it is not proper to prove that he committed other crimes, although of a like nature. We have no idea of gainsaying that which these and other cases have held or assumed; nevertheless, we afe of opinion that it is not this rule, but another, governing the admission of evidence, to which effect is to be given in the present case.
Fraud is complex, involving a mental state, as well as an open act. The mental state, in turn, has 'usually at least three elements — knowledge, intent and design. Knowledge is the receiving of a mental impression — the state of being aware (Wigm. Evid., §§ 244, 245, 300); intent is t|ie state of mind which precedes or accompanies an act — volition (Id., §§ 242, 300), and design is the conceived plan or system by which the intent is to be carried out or attained (Id., §§ 237, 300). As this mental state can in itself be neither seen nor handled, the existence of its elements must be shown by acts of the person charged or occurrences in which he has borne some part. Furthermore, as the logical process by which knowledge, intent or design may be inferred from acts or occurrences is inductive, we increase the probability of safe and sane inference by multiplying instances of the act or occurrence. Hence it becomes a sound rule, both in logic and in law, that evidence of acts similar to. the one immediately under investigation may be offered for the purpose of showing the knowledge, intent or design which are elements of the fraudulent conduct. See Wigm. Evid., §§ 300, 305, 330, 340,
In the oft-quoted ease of State v. Raymond (1891), 24 Vroom 260, 264, 265, the evidence offered was declared irrelevant, and Justice Dixon spoke on the matter thus: “The general rule on this subject is that upon the trial of a person for one crime evidence that he has. been guilty of other crimes is irrelevant, but there are several exceptions to the rule. * * * Exception is made, also-, when the acts charged * * * are criminal only when performed with a certain intent or with knowledge of a certain fact; in such ease other acts of the defendant, although criminal, may be adduced to prove that he had such specific intent or knowledge."
If this statement of the exception to the rule be thought a dictum, it was not a dictum which ruled the admissibility of the business card and newspaper advertisement in Mayer v. State (1899), 35 Vroom 323, 327, 328. Some light, also, is thrown' upon the principle under consideration by the reasoning in the cases of State v. Snover (1900), 36 Id. 289, 293, and Bullock v. State (1900), Id. 557, 575. A difference of notion appears in the books as to whether the principle is a specification under the general rule as to the relevancy of proofs, or is an exception under the rule excluding evidence on the -ground of unfair prejudice. This need not, however, delay us, as we are now concerned only with the existence of the principle, not with its place in a systematic scheme.
All of the authorities quoted above have reference to. evidence in criminal cases, but the principle has a place in civil cases as well. Professor Wigmore (1 Wigm. Evid., § 370) says: “The peculiarity of the qrrestion involved is merely whether, and under what conditions, other similar acts are receivable to show knowledge, intent or design as to the act charged. This question is of much less frequent occurrence in civil than in criminal cases merely because the issues of intent and the like are less commonly open in civil cases; but whenever knowledge, intent or design is relevant in a civil case, the principles are equally applicable."
The principle under consideration is by no means unknown among us in civil cases. By it, in Wilkinson v. Dodd (1886), 15 Stew. Eq. 234, 236, 248, 250, there-was justified the admission of proof of prior illegal acts of management, as tending to show either a knowledge of wrong-doing in a later act or an intent to commit a wrong in such act, from which pecuniary loss resulted; and, by like reasoning, in Continental Match Co. v. Swett (1898), 32 Vroom 457, 458, there was sanctioned the admission of proof of work done for third persons by the plaintiff as serving to show knowledge or skill in the line of like work -in which-he had been employed by-the defendant. - -
Coming now to the application of the principle to the case
It is undoubtedly true that a trial judge may not assume as a fact that which is disputed, and, by his charge or otherwise, withdraw any such matter from the consideration of the jurors, thus affecting their determination. See Betts v. Francis (1862), 1 Vroom 153, 154, 156, 157; Broadway Insurance Co. v. Doying (1893), 26 Id. 569, 572; Marsh v. Newark H. & V. Mach. Co. (1894), 28 Id. 36, 39.
Looking-, however, as we ought to do (Sullivan v. North Hudson County Railroad Co. (1889), 22 Vroom 518, 542), at all the parts of the charge which bore upon the alleged sale of the oil shares by the plaintiff to the defendant, we do not think that the jury could have been misled to the injury of the plaintiff. The charge being fairly interpreted, the trial judge said to the jurors' — not, here you have a fact to be assumed as a thing established, because I so instruct you — but, here you have a matter which has been put in evidence as an element for your use in forming your own conclusions and making up your verdict. This view accords wiih that taken by the Supreme Court of the charge' complained of in- Smith v. State (1851), 3 Zab. 130, 139.
The last objection of the plaintiff in error falls, as did the others, and the result is that the judgment of the Supreme Court must be in all things affirmed, with costs.