74 N.Y. 501 | NY | 1878
This is an action for the settlement of partnership accounts. There is no contest in this court over any item thereof but two. The first of those was allowed by the referee, upon the testimony of the defendant, and upon that alone.
The exceptions taken by the plaintiff are all to the conclusions of law of the referee; and the point made here, upon the item last above spoken of, is that there is no testimony to sustain it. As we have said, there was testimony, but from the defendant alone. But it appears from the record that the defendant was contradicted in what he testified to on other items, more than once, by other witnesses, to whom the referee gave credence therein rather than to the defendant. Thus, says the learned counsel for the appellant, the defendant was shown to have testified falsely and corruptly; and the claim is made, that a witness who stands thus before a court is not, as matter of law, entitled to belief upon any issue to which he speaks upon the trial; and the maxim, falsus in uno, falsus in omnibus, is invoked. And then, the argument runs, the law holding him entirely unworthy of belief, his testimony is as no testimony, and there is no *504
evidence upon which to base the conclusion of law excepted to. If it be conceded that the case does clearly show that the defendant was corrupt in giving his testimony, that is, that he testified falsely, with the consciousness and knowledge that what he said was not true, and with the intent to testify to it and to have it believed, the learned counsel has show of authority for his position. Thus in Dunlop v. Patterson (5 Cow., 243), the Supreme Court held that the jury should have been instructed to disregard the testimony of such a witness, that it was error not to have so instructed them, and that the judgment should, for that error, be reversed. There, however, the witness admitted that he had, on a former examination as a witness to the same matter, sworn falsely, and knew at the time of so swearing, that his testimony was false. His conduct fell within the definition of perjury; and there was no escape from the conclusion that he had been, or then was, a perjured witnesss. And the judgment of the court is there put upon the ground, substantially, that out of his own mouth was he convicted; that he was a witness "who swore at one time in direct contradiction to the testimony given by him at another, in relation to the same transaction." This case has been commented on in Dunn v. The People
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The second point made by the appellant is not tenable. The sale to the plaintiff, upon the bidding agreed upon between them, did not include chattels which they once owned, but had sold before the bidding; nor did it include the money or debits obtained therefor. It is true that that agreement speaks of the property as detailed in the inventory, but it is by way of reference and description only. It is in the nature of a recital or matter of inducement. It is not that which is agreed to be done. "For the purpose of disposing of the joint-stock of the firm of Metcalf
Dering, as detailed in the inventory thereof, completed on the twenty-second or twenty-third of the present month, we hereby agree to bid upon all the machinery, etc., jointly owned by the parties hereto, excepting * * * the book accounts and receivables of the firm." This, the first part of the writing, is a statement of the object of the agreement; then comes what is agreed to be done, viz.: to bid upon the property jointly owned by them, with the exception above stated. And it is stated that "the joint-stock and property, thus offered, is to be bid upon." It is plain that the lumber sold in the meantime was not property still owned by them. It had been changed into accounts or receivables. As such, it was expressly excepted from the bid and sale. It appears that the inventory referred to was not finished and did not include all that it was intended should appear in it. Yet it will not be claimed that the reference to it shut out from the bid and sale chattels of the firm not enumerated in it, or which might have been bought after the inventory was made. The agreement of conveyance of the third of June is in the nature of a contemporaneous construction by the parties of that of May. That again excepts all book accounts, receivables and debts. (SeePlatt v. Lott,
The judgment should be affirmed.
All concur, except MILLER and EARL, JJ., absent.
Judgment affirmed. *509