(аfter stating the facts). — I. Plaintiff first contends that the evidence was sufficient to make it incumbent upon the trial court to find in its favor, and that we should review the evidence, reverse the judgment and direct а finding and judgment for plaintiff for the full amount of its claim.
We are unable to agree to this contentiоn. Even though the evidence offered upon behalf of the plaintiff was not controverted by words, still its weight, dependent upon the credibility of the witnesses, which might be determined by their manner and demeanor while testifying, was for the trier of the facts, whose finding — this being an action at law and there being nothing to indicate that he acted arbitrarily, under tbe influence of passion or prejudice — is binding upon us. The evidence may be all one way, yet it is for the trier of the facts to say whether he believes the witnesses or not. [Gannon v. Laclede Gaslight Co.,
This is not a case where it is apparеnt that there was no serious and real dispute as to the credibility of the witnesses testifying nor as to the existence of the facts to which they gave testimony. It is not a .case where the essential facts were conceded. There is not present even the significance that might attaсh to the defendant, not testifying, this action being against the administratrix. Not only by vigorous cross-examina-. tion and objecting to questions, but by controverting part of the testimony and even attempting to impеach witness Geist by proof of contrary statements out of court, did defendant’s counsel reрel any implication that facts or credibility of witness were conceded.
Plaintiff’s first contention we. rule against it.
II. Upon the prоmise of defendant’s counsel to certainly make its relevancy appear later in the case, the court permitted him to show upon his cross-examination of Geist that about the same time deceased purchased a diamond stud for $630 charged for in the account, one Jessie Ross had purchased a diamond ring at about the same price, and to ask Geist whethеr in the probate court he had not identified a receipted bill given to Jessie Ross which showed that a diamond “stud” had been purchased by Jessie Ross for $630 and had been paid for by her by eight installmеnts, corresponding in amounts and dates with eight credits shown on Killian’s account.
Geist denied having so identified such a receipt. Defendant then, still proceeding we assume upon the faith of the promise to show its relevancy, showed by a witness that .in the probate court Geist had identified said rеceipt and that said receipt (which had since been lost or mislaid) did disclose the coinсidences of amounts And dates mentioned. '
The relevancy of this testimony was not in any
The defendant at the close of the whole case moved that all evidence as to this irrelevant transaction be stricken out. The court overruled the motion. This was error. The plaintiff had a right to have said irrelevant evidence stricken out. [Gage v. Averill,
If the court had admitted the evidence upon the promise to connect it by later evidence and no motion to strike out had been made, then, it might have been assumed, as was done in thе last cited case, Gage v. Averill, that ’ there was nothing involved but the order of proof as to which the trial court had discretion, and that having no probative force the trial court did not allow this evidence to influence its finding. But here the court, at the close of the evidence, on the very verge of making its finding, overruled the motion to strike out, thereby indicating in a most striking manner that it considеred the evidence arrived at as having probative force.
This irrelevant evidence wаs erroneously used to impeach the credibility of plaintiff’s most important witness. [Harper v. Railrоad,
III. We also rule (assuming that Geist was incompetent), that by extending the сross-examination of plaintiff’s witness Geist beyond the. scope of what the witness was compеtent to testify to upon direct
For the errors above noted the judgment is reversed and cause remanded.