Kelly v. Brooks

| Ala. | Jun 15, 1854

CHILTON, C. J. —

1. The proof made by the witness Heart, that as clerk for the auctioneer, Brooks, he kept a memorandum, which he produced, showing the day of sale, and the price at which the slave Dick was sold, and that he was taken away by Kelly, the purchaser, and not returned until the next day or day after that, was clearly admissible, as tending not only to prove the sale, but a consummation of •it by the delivery of the property to the purchaser. The legality of this proof, though presented by the bill of exceptions, was not controverted in the argument; so we dismiss it, and turn to the next subject of inquiry, namely

2. Whether the proof made of the proposal of the plaintiff to the defendant, that each should call a physician, and the two physicians should select a third, to determine as to the soundness of the slave, and the refusal of the defendant to accede to this proposal, was legal. We are unable to perceive what legitimate effect this proof could have upon the issues before the jury. On the other hand, it may be readily seen how it might have been turned in the argument to the disadvantage of the defendant, who had a perfect right to reject a proposal for a compromise and plant himself upon his supposed legal rights, if he chose to do so. Such proof would open a door to artifice in the manufacture of such documents for the purpose of making them evidence, and might be well calculated to mislead a jury, and should not be allowed.

3. The defendant, having examined LeBaron as a witness, and proved by him that the slave was sold on his account by Brooks, and not on account of Brooks, who brought this suit for said witness’loenefit, objected to the plaintiff’s proceeding, upon cross examination of the same witness, to prove the soundness of the slave. Whatever may have been the rule formerly, it is now well settled, that where a party introduces and examines a witness in chief, who has an interest adverse to him, he thereby gives the witness credit, waives his objection to his interest, and thus confers the jright on his antagonist to examine him fully as to his knowledge of any and all facts material in the case.

4. We are unable to perceive any error in the charges of the court. They were fully as favorable for the defendant as the law would warrant, and, taken together, presented the case in a very clear and proper light before the jury. It is too clear, we think, to admit of doubt, that if the defendant-bid off the slave, and after purchasing, took the actual possession of him, and retained him for one, two, or three days, before he made any objection to the sale, and the acceptance of him was without anything being said, or any understanding had between the parties, qualifying the act, the jury might well infer from this a consummation of the contract, so as to take the sale without the statute of frauds as enacted by the Code.

For the error in admitting the proof of the proposal to call in the aid of physicians, the judgment must be reversed, and the cause remanded.