20 S.E. 190 | N.C. | 1894
Upon the trial the plaintiffs submitted evidence which, if believed by the jury, made out for them a prima facie case according to the principle established when this cause was before the Court on a former appeal.
If A. A. DeLoatch had testified on the plaintiff's behalf that they were the owners of the bill of lading, and that he, as president of the company, had transferred it to them by indorsement at a certain time, then it would have been, of course, entirely competent for the defendants to show, for the purpose of weakening the force of his testimony, that since the date of the alleged transfer of the bill of lading he had made statements, oral or written, contradictory of or inconsistent with his testimony. But the plaintiffs saw fit not to use him as a witness in their behalf, and thus rendered his declaration about the fact at issue entirely irrelevant. Hence, the telegram and letters written and sent by him after the alleged transfer of the bill of lading and the drawing of the accompanying draft to plaintiffs' order, and put in evidence by the *445 defendants and admitted over the plaintiffs' objection, should have been excluded. There was no evidence that, in any way, connected the plaintiffs with this telegram and these letters, and no statement therein contained should be allowed to affect their rights. It matters (645) not in what manner the sending of the telegram and the writing of the letters by DeLoatch was proved, whether by his testimony as witness present at the trial and put upon the witness stand by the defendants, or by his deposition; these declarations of his should have been excluded.
It is not necessary therefore to decide whether a defendant, upon the trial of a cause, should be allowed to use for his own purposes a portion of the deposition of a witness which was taken at the instance of the plaintiff — whether he should be allowed to put in evidence what the witness said under his cross-examination without also putting in evidence the whole deposition, for the facts testified to by this witness were irrelevant facts, and had no proper place in the trial, whether established by the introduction of an entire deposition, or part of one, or by the oral testimony of a present witness.
New trial.
Cited: Grandin v. Triplett,
