65 W. Va. 375 | W. Va. | 1909
C. L. Armentrout and C. S. Armentrout made a promissory note to R. E. Lee Armentrout, which R. E. Lee Armentrout assigned to L. D. Lambert, and Lambert sued on it before a justice making C. L. Armentrout, C. S. Armentrout and R. E. Lee Armentrout defendants. The case went to the circuit court of Randolph county by appeal, and there the court directed a
The defence was that the note had been given for a horse and wagon, and that the horse had been warranted as sound, but in fact was unsound. On the trial the plaintiff introduced R. E. Lee Armentrout as a witness, who gave evidence in chief that the note had been given for a horse and wagon, and that forty dollars the price of the wagon had been paid, and no more, and gave no evidence at all touching the warranty or soundness of the horse. On cross-examination the de-fence asked him if he had not warranted the soundness of the horse, and he denied having done so. The defence also asked whether he had not made statements out of court that he knew the horse was unsound, and had warranted him as sound, and he denied having made such statements. Then the defence offered to prove by other witnesses that Armentrout had made such contradictory statements; but the court would not allow evidence of such statements.
The great weight of authority is that a party has no right to cross-examine a witness beyond facts elicited on his examination in chief. He cannot prove his own case by his adversary’s witness, without making him his own witness as to such new independent matter. If he wishes to prove other matters by him, he must call him in the subsequent progress of the case; and if without waiting his turn, which the court, to avoid confusion and promote method and regularity, should require, he at once interrogates, he makes the witness his own. State v. Hatfield, 48 W. Va.. 561; State v. Carr, (decided February 1909); 3 Jones on Ev., sec. 820, n. 6; 2 Elliott on Ev., secs. 917, 922. So, the defence in this case made Armentrout its own witness touching contradictory, out-of-court statements as to warranty of the horse. This being so then comes the question whether the defendants could impeach Armentrout by proof from other witnesses of what he denied, that is, that he made statements that he knew the horse was unsound and had stated he was sound when he sold ¡him. I do not know that this Court has passed on this question. A party cannot impeach his own witness by evidence of other witnesses, either as to general reputation for
I must not be taken as saying that a party is bound by what his witness says. He cannot impeach his general reputation for veracit3r or prove contradictory statements; but he may by other witnesses prove that the facts are otherwise than as stated, and it is no objection to any relevant evidence of material facts on which he relies to sustain his ease, that it may operate to contradict and thus discredit his own witness. Stout v. Sands, 56 W. Va. 663; 30 Am. & Eng. Ency. L. 1129; 1st ed. same 812; Wharton on Ev., sec. 549; 3 Jones on Ev., see. 860; 2 Wigmore on Ev., secs. 907, 1051; Hickory v. U. S., 151 U. S. 303; McKelvy on Ev. 400; 2 Elliott on Ev., sec. 985; 6 Am. & Eng. Anno. Cases, 707.
The rule which denies right to prove contradictory statements of one’s own witness is not infallible. Wigmore on Evidence, vol. 2, sec. 906, says: “So. far as impeachment by prior self contradiction is, under any of the foregoing doctrines prohibited, the prohibition does not apply to a party’s admission, which is receivable as such, even though it 'be also a self-contradiction of himself as a witness.” Hickory v. U. S., 151 U. S. 303, sa}rs that the rule does not apply to a party. We find in that reliable work, Am. & Eng. Ency. L., vol. 30, 1130, that
The court refused evidence to prove that the horse for which, in part, the note sued on was given was unsound. Notwithstanding the rule against one impeaching his own evidence, this evidence, under law above stated, would have been admissible if the fact sought to be proven were a good defence; but it is not alone, and therefore there was no error in its refusal. There is an implied warranty of title in sales of chattels, but not of quality. There must be fraudulent representation or express warranty of qualitjq soundness or fitness, as a general rule. The rule of caveat emptor here applies. Mason v. Chappell, 15 Grat. 572; Burnside v. Burdett, 15 W. Va. 702; Jarrett v. Goodnow, 39 Id,. 602.
These principles call upon us to set aside and reverse verdict and judgment and remand for another trial, according to those principles, and it will bé so ordered.
Note by
If there were evidence of warranty in, then evidence of unsoundness would be admissible, but not alone.
Reversed.