| Neb. | Jul 15, 1884
It appears from the pleadings, that the plaintiff in the court below purchased and obtained by verbal assignment from one Samuel ,M. Wright, a certain claim which the said Wright held against the defendant below, plaintiff in error, in this court. This claim grew out of the purchase by Frederick, plaintiff in error, of .a lot of hogs from the said Wright. These hogs were bought while on the premises of Wright, but were to be delivered to Frederick at his place near Blair,; but there is a radical conflict between the parties, both in their pleadings and evidence as to whether the hogs were to be delivered at the said point as a part of the consideration for which the gross sum or price of three hundred and eighty-five dollars was to be paid, or whether the price of the hogs as agreed upon was three hundred and sixty-five dollars, the hogs to be considered delivered at the time and place of the verbal contract, and the additional twenty dollars to be paid as the price of hauling the hogs to Blair as on an independent contract.
It further appears from the pleadings and evidence in the case, and the admissions of the parties in open court, as shown by the bill of exceptions, that on the 27th day of July, 1881, one David Conchman had a judgment against the said Samuel M. Wright, standing on the docket of the district court of Washington county in full force; that on that day process of garnishment was issued on said judgment and served on the plaintiff in error, that he appeared and answered as such garnishee in the said cause, and that
The issues then before the district court in this case were: 1. What balance was due to Wright from Frederick on the sale and delivery of the hogs at the time of the sale and assignment of the claim by Wright to^ the plaintiff below? 2. Was the sale and delivery of the claim by Wright to plaintiff prior, in point of time, to the service of the process in garnishment on Frederick? There was evidence on both of these issues before the jury, proper for its consideration, and if the law was correctly given to the jury by the court, and there is evidence to-sustain their verdict, it cannot be disturbed.
But it is contended by plaintiff in error that the law was not correctly given to the jury in the charge of the court, and that by it they were misled to his prejudice.
The instructions complained of are as follows: “4. You are instructed that if you are satisfied • from the evidence that Wright, on the 21st day of July, assigned to the plaintiff all his interest in his claim against the defendant, then you must find for the plaintiff to the extent that said defendant was indebted to said Wright.
“4J. You are instructed that it makes no difference that all of the hogs had not been delivered at the time of the assignment to Ballard, the assignment is good notwithstanding, and conveyed to Ballard all rights which Wright would have had when all the hogs should be delivered.
“ 5. Should you find from the evidence that the plaintiff did not receive an assignment of said claim against defendant until after the service of the garnishment writ, then the plaintiff cannot recover in this action.”
The instruction numbered four and a half cannot be sustained;
There was evidence before the jury tending to prove that there wás a failure on the part of Wright to deliver
I fail to see any ground of objection to the other instructions excepted to.
As to the first point made in the petition in error, that “ the court erred in sustaining the objection of the plaintiff and in refusing to allow the defendant to testify whether he was indebted to Samuel M. Wright or not, on the 21st day of July, 1881,” I do not think that there was error in such refusal. Plaintiff in error was allowed to testify as to facts, and it was to conclusions that the court refused to allow him to testify.
The above applies equally to the second and third points. The questions propounded to defendant when on the stand as á witness in his own behalf, and to which the objections of the plaintiff were sustained, called for conclusions and not for facts.
The points made against the depositions of plaintiff (4 and 5) can not be sustained. The ground of the objections seems to be that the witnesses did not disclose the .grounds or source of their knowledge of the facts to which they deposed. The defendant was present by counsel at the taking of the depositions and made objections to the interrogatories excepted to as incompetent, irrelevant, and immaterial; but put no cross interrogatories to either of the witnesses. The eighth question put to the deponent, Elias 'Wilcox, and the first referred to in the petition in error, will serve as a sample:
“ 8. State if you know how much Frederick was to pay
There was no error on the part of the court in refusing to allow the defendant tó prove by his own testimony “ that Wright came to defendant’s place and demanded the money on July, 1883, two days after the alleged assignment, the same being in contradiction of the testimony of said Wright.”
When Mr. Wright was on the stand as a witness for the plaintiff, and undergoing cross-examination by defendant’s counsel, the following question was put to him :
Q,. “Don’t you know that on the 29th day of July, the day that this suit was commenced, that you went to Mr. Frederick for the money, claiming it as yours?”
To which the witness answered as follows:
A. “ I don’t know what day the case was commenced, but after,I assigned it to Mr. Ballard I never asked Mr. Frederick or any body else for it.”
It was quite irrelevant to the issue between plaintiff and defendant that this witness sought to collect this claim from defendant on a certain day, and defendant was only permitted under the rules of law to put the above question to him on cross-examination for the purpose of testing his truthfulness or the accuracy of his memory, that the jury might give his testimony as to the material facts testified to by him only such weight as it might be entitled to. But when for this purpose a party puts a question which is collateral to the issue, he is bound by the answer of the witness, and cannot call another witness to contradict him. See George v. State, ante p. 318. To permit thi& would tend to protract trials and multiply issues to an inadmissible extent.
For error in the instruction first above considered the judgment of the district court is reversed and the cause remanded for further proceedings in acccordance with law.
Reversed and remanded.