7 Wend. 57 | N.Y. Sup. Ct. | 1831
This action is brought on a promissory note made by the defendant and one Judd, jointly and severally to the plaintiff. The defence is, that the money for which the note was given, was put into a company, formed by the parties to this suit, and had been brought into the adjustment of their concerns ; or as their affairs had been settled by arbitration, that it was within the submission, and is to be considered as included in the award. The note itself shews that the money was loaned to the defendant and Judd. To countervail this evidence, the defendant offered to prove that the money was appropriated to the use, and expended in the business of the company. The judge rejected this offer, and the defendant expected to his decision. The fact offered to be proved did not tend to make out the defence ; though expended in the company, that fact would not show whether the plaintiff loaned it to the defendant and Judd, and that it went to the use of the company by their direction, or whether it was loaned by the plaintiff to the whole company. It is not an unusual occurrence for one member of a firm to loan to other
Judd, the co-maker of the note, was examined as a witness, an(j testified that the money was an individual loan to the defendant and himself. He was asked if he had not told certain persons in the autumn of 1820, thdt the plaintiff had brought money into the company, and in consequence thereof that they were enabled to pay off their hands; he answered that he had no recollection of having said any thing of the kind. He was then asked if it was true, provided he had said so. He said he should not have said so, if it was not true ; but there was no such fact within his knoweledge, and the plaintiff was not at that time a member of the company. The defendant then proposed to prove that Judd had said in December, 1820, that the plaintiff had put considerable' money into] the] concern, whereby they were enabled to pay off their hands. This evidence was excluded, upon the ground that the fact of the plaintiff’s having put into the company money at that time was immaterial to the present issue, and the defendant could not disprove what the witness had said for the purpose of impeaching him, but must take his answer ; and could not be permitted to go into an inquiry, whether the witness was mistaken or not, on that collateral matter. The defendant contends that there was evidence to shew that the plaintiff was in 1820 a member of the company, and being such, it was not immaterial to the issue in this case to shew that he had advanced at that time money to it; but the judge decided that the fact that he was not then a partner was sufficiently established; and not being a partner, whether he advanced money to the company or not, was] immaterial to the issue. There was some evidence of acts of the plaintiff, tending to show that he was a partner in 1820, but the fact was not established. While the defendant was absent and Judd sick, the plaintiff took charge of their business, and acted in relation to it as a partner would do. This, under the circumstances, is slight proof, and cannot stand against the agreement of the parties to this suit, reciting the commencement of the partnership on the 1st January, 1821, and the positive declaration of
Whether a deed or any other written instrument is lost or not, if involved in the issue of a cause upon the merits, is a question for a jury to settle ; but when that question incidentally arises in the progress of a trial on the application of a party to be permitted to give parol evidence of the contents of such deed or instrument, the court, and not the jury, pass on the fact of the loss. The judge, I think, decided correctly the question as to the plaintiff’s not being a partner in December, 1820. The evidence did not enable him to say he was. If he was not then a partner or a member of the company, whether he did or did not advance money to that company, was wholly collateral, and immaterial to the issue to be tried. If he did not make such an advance, the proof of that fact would not certainly help the defence ; if he did advance money, the establishment of that fact would not prove that he advanced it to himself, as well as to the defendant and Judd, which was the substance of the defence. The fact which was to be established by the rejected testimony was strictly immaterial.
Was the defendant, entitled to prove the declarations with a view to impeach Judd? It is settled law that a witness cannot be examined as to any distinct collateral fact, for the purpose of impeaching his testimony by contradicting him. 1 Starkie’s Ev. 134. 1 Phil. Ev. 21. But if a question relative to such a fact be put and answered, evidence cannot afterwards be adduced for the purpose of contradiction. 1 Starkie’s Ev. 134. £ Cowp. 638. 2 Starkie’s N. P. C. 149. 2 Gallison, 53.
J udgment for plaintiff.
