138 Mich. 515 | Mich. | 1904
(after stating the facts).
“ Q. Was there anything said by the old gentleman at that time that they were making that agreement why he should pay Fred that $400 ? A. No.
“ Q. Didn’t give any reasons ? A. No.”
After plaintiff had rested, defendant moved to strike out plaintiff’s testimony, and to direct a verdict for defendant. One of the reasons was that no original indebtedness had been proved. This question was argued just before a recess of the court. Upon the reassembling of the court, plaintiff recalled Julia Mosser, and she testified as follows:
“I did not understand the questions asked me as to the reason for grandfather directing Dan Piehl to pay Fred Piehl $400, and I desire to change my testimony.
“ Q. Will you state to the jury what your grandfather said as to the reason of having Dan pay Fred the $400 ? A. Well, he said he owed it to Fred, and Uncle Dan was to pay it.”
On cross-examination she testified:
‘11 have talked with the attorney since I gave my testimony this morning. They explained my testimony to me —what they wanted, and what it meant. I do not know what I did not understand, and cannot remember any more. All I know is that he got the money, and he was to pay Uncle Fred and Aunt Kate. He owed Uncle Fred $400, and Uncle Dan was to pay that after his death. I cannot remember the conversation when Uncle Dan was there; it is too long ago.”
The recall of this witness was in the discretion of the oircuit judge. Whether her explanation was reasonable was a question for the jury. It is true that the testimony upon her second examination is in direct conflict with that given on her first. While it may be difficult to understand how she could have misunderstood the question and answer given by her on her first examination, yet such matters are for the jury. The only control the trial court
“When I am dead I want you to give sister Kate $400, and your oldest brother (plaintiff) $400. I told you that when you got the money.”
There is nothing in this or any other of her testimony to indicate that her father owed plaintiff, and that defendant agreed to pay it. The father, one of the parties to the claimed tripartite agreement, died before plaintiff knew,
Judgment reversed, and new trial ordered.