82 Mich. 619 | Mich. | 1890
The. plaintiff sued the defendant in justice’s court for the sum of $50, claimed to be due her as a balance on a sale of a small stock of groceries. Defendant pleaded the general issue, with notice of set-off, and also of recoupment, claiming that the goods sold were inferior to warranty. He also gave notice that his habitation and goods were injured by water which rained through defendant’s house rented by him from the plaintiff when he bought the goods. The plaintiff had judgment in justice’s court, and an appeal was taken to the Wayne circuit court, where the plaintiff again had judgment. Defendant brings error.
A lai’ge number of errors are assigned, very few of which require attention. The evidence offered by defendant to show that the goods had been injured by water, owing to a defect in the roof of the store rented by defendant of the plaintiff, was not admissible. Damages resulting from such a cause could not be recouped in this action. Such damages only can be recouped as arise out of the contract upon which the suit is brought. Morehouse v. Baker, 48 Mich. 335 (12 N. W. Rep. 170); Platt v. Brand, 26 Id. 173.
On cross-examination of the plaintiff’s husband, counsel for defendant was allowed to ask him several questions relating to his former conviction of crime. Among others were the following:
“ Q. Were you ever arrested?
“A. No; I was not.
“ Q. Didn’t you swear right here in this court, less than a year ago, that you had been arrested so many times you did not know how many they were?
“A. No sir; I did not say so.”
The witness having testified that he was sworn in the ease of Helwig v. Schroeder, counsel proposed to interrogate him further as to what he testified to on such
When the plaintiff had rested her case, defendant’s counsel offered’to show by the records of the United States District Court for the Eastern District of Michigan, and by the records of the police court of Detroit,, that the plaintiff’s witness John Helwig had been convicted of several minor offenses after being duly tried therefor. This was objected to as incompetent and immaterial, and excluded. Error is assigned on this ruling. It is urged by defendant’s counsel that the rule is well established in this State that a witness may be discredited by showing by the record that he has been convicted of crime. How. Stat. § 7543; Smith v. Brown, 2 Mich. 162; Dickinson v. Dustin, 21 Id. 561; Driscoll v. People, 47 Id. 416 (11 N. W. Rep. 223); People v. Maunausau, 60 Id. 21 (26 N. W. Rep. 799). As opposed to this, it is urged by plaintiff’s counsel that the purpose of the evidence offered was to contradict the witness, who had testified, when cross-examined by defendant’s counsel, that he had never been arrested or convicted of crime; that this inquiry into the witness’ past life was not relevant to the issue, but was collateral; and that a witness cannot be impeached by con
The cases cited by counsel for plaintiff and defendant fully support the doctrine contended for by each. They do not appear, however, to decide the exact point involved in this case. There were various ways of impeaching a witness at common law. It could be shown that his general reputation for truth and veracity was bad; that he had made statements relevant to the issue, inconsistent with his evidence; that he had been guilty of misconduct connected with the proceedings, — as that he had offered or accepted a bribe, threatened a party, or his witness, and the like. At common law, also, the existence of certain facts disqualified a man from being a witness altogether. If he had been convicted of crime; if he was interested, or related within certain degrees to those who were interested, — he could not give his evidence. To ascertain whether any of these disabilities existed, the witness was examined on his voir clire. If he admitted the disqualifying fact, it was sufficient. The party objecting, however, was not bound by his answer, but could call witnesses to prove the facts. 2 Phil. Ev. p. 873; note 569; Best, Ev. § 133. The statute before referred to (How. Stat. § 7543) in doing away with the disability of the common law, introduced other and additional methods of impeaching or discrediting witnesses. The facts which could formerly be shown to disqualify a witness may now be shown as affecting his credibility, and, as formerly the objecting party was not bound to accept the statement of the witness as to his interest, relationship, or conviction of crime, but might prove it against his denial, so, I can see no reason why a party who desires to show like facts to discredit a witness should be bound by his answer. The statute expressly provides that such facts may be
The main point relied on by defendant grows out of the refusal of the circuit judge to permit the defendant to show a breach of warranty of the goods sold, by way of recoupment. It appeal’s by the record that the first matter of defense interposed was that the plaintiff’s claim had been settled by turning over to her certain counters and shelving which, it was claimed, she had agreed to take in payment. He next offered evidence to show that the .goods, when sold to him, were warranted to be of good merchantable quality, whereas they were in fact musty, rotten, and unsalable. This evidence was objected to and excluded. It is urged by plaintiff’s counsel, in support of this ruling, that the evidence offered was inconsistent with the defense already made; that the agreement sworn to by defendant and his witnesses, by which the $50 due to plaintiff was to be settled for and paid by turning out the counters and shelving, was made long after the sale and after the breach of warranty, if any existed; and that it was inconsistent for defendant to set up, by way of a second defense, that he owed the plaintiff nothing because of the damages that had resulted from the breach of warranty.
The rule contended for can only apply in cases where the defenses relied on are so repugnant in law or fact that one or the other must of necessity give way. This is not such a case. The defendant had a legal right to
For the errors pointed out, the judgment must be reversed, and a new trial granted.