111 Mich. 663 | Mich. | 1897
The defendant, being the owner of a certain messuage, sold the same upon contract to a Mrs. Stork. The plaintiffs, being desirous of purchasing the same, negotiated with the husband of Mrs. Stork, and finally purchased the property. They subsequently brought this action against the defendant to recover damages for alleged deceit in certain representations alleged to have been made by the defendant prior to their purchase, when interrogated in relation to the condition of the premises, at a time when and under circumstances showing that he knew of their contemplated purchase.
There is nothing in the direct examination as printed that shows that these matters were in any way material, but the record is said not to contain all of the testimony, and it may be that the questions were pertinent as tending to controvert Stork’s denial of deceit, or qualifying testimony as to the value or condition of the premises. If it was material, counsel had the right to call impeaching witnesses if the questions were answered in the negative; and the answers as given, falling short of admitting the fact, if, they did not deny it, were sufficient to justify a contradiction by the witnesses named in the questions. The following cases cited by counsel support this proposition: Smith v. People, 2 Mich. 418; State v. Johnson, 47 La. Ann. 1225; Palmeri v. Railway Co., (Sup.) 14 N. Y. Supp. 468. As these
But it was improper for counsel to state to the jury what he could prove by certain witnesses had Stork answered the questions in the negative. Under the authorities cited, he might have called them had he chosen to do so. It is improper for counsel to state what witnesses would testify if called. In Carne v. Litchfield, 2 Mich. 340, it was said that 4 4 the only facts which counsel are properly permitted to comment upon before a jury are such as have been legally elicited upon the trial of the cause.” And in Donovan v. Richmond, 61 Mich. 467, it was said: 4 4 Counsel have no right to comment upon papers that have not been put in evidence, or on the conduct of the parties in connection with them.” It has been held that a trial judge must restrain counsel from commenting on testimony that has been excluded, if objection is made to such comments. Hollywood v. Reed,, 57 Mich. 234. See, also, Hitchcock v. Moore, 70 Mich. 112 (14 Am. St. Rep. 474.). In Amperse v. Fleckenstein, 67 Mich. 247, it was said: 44 Counsel have no right to put before the jury, by way of argument, what they know of the case, outside of the testimony.” And in Rutter v. Collins, 96 Mich. 510, Mr. Justice McGrath said: '“The jury must get the evidence from the lips of sworn witnesses, and not from the unsworn statements of the lawyers in the argument of the case.” It is not every unguarded remark of counsel that will justify the reversal of a case, where it is evident that no harm can result, but in this case the court did not caution the jury against the statements,. On the contrary, the record shows that they were made with his approval and sanction, against the express objection of counsel for
Error is assigned upon the testimony of one Mr. England, who testified to the representations of Mr. Stork, in his first talk, in the absence of Miller, with the plaintiffs. If these statements were admissible at all, it was, as the judge charged the jury, merely by way of impeachment; and we cannot determine from this record that this testimony was not proper for that purpose. There was danger of its being treated as showing representations made on behalf of the defendant. We do not discover a foundation for the reception of this testimony for the purpose of impeachment, though it is possible that a proper foundation was laid; hence we cannot say that it was error. This discussion covers the modification of defendant’s eighth request.
The judgment is reversed, and a new trial ordered.