13 Wis. 332 | Wis. | 1861
By the Court,
This was a suit in the nature of an action of trespass, brought by the plaintiff in error against the defendant in error, to recover damages for the taking and conversion of a quantity of square timber and braces, which had been prepared as the frame of a bam, and some planks and unwrought timber. The complaint was in the usual form of complaints in such actions. The answer was a general denial of each and every allegation con-
On bis direct examination tbe witness testified that tbe timber and planks in question were procured by him in fulfilment of a contract which be bad made with Ealkner for tbe building of a barn. Afterwards, during tbe trial, tbe execution of a contract in writing between Henry "W. and Ealkner was proved, and tbe contract offered and received in evidence. To this tbe plaintiff’s counsel took exception. On tbe part of tbe defendant little orno evidence was offered, except as to tbe quantity and value of tbe timber taken.
The record presents two questions for our consideration; one as to the effect of first admitting and then excluding the evidence given on the cross-examination of the plaintiff, and the other as to the admission of the contract between Henry W. Remington and Falkner.
Upon the first it is very clear that the court was wrong when it admitted, and right when it excluded the evidence. The pleadings laid no foundation for the introduction of any such evidence. For conceding that the transfer of property from Henry W. to the plaintiff was fraudulent and void as to the creditors of the former, yet the defendant was in no position to take advantage of the fraud. His answer did not aver that he was a creditor, or the representative of a credit- or of Henry W., claiming title to the property under him; and one or the other he must have been in order to attack the sale. Hence no evidence of fraud was admissible. But the question arises whether the error of admitting it was cured by the subsequent direction of the court to the jury not to consider it. This question was considered by this court in the case of The State Bank vs. Dutton, decided at the last term [11 Wis., 371]. As will be seen by a reference to that case, the most favorable rule to the party in whose behalf such improper evidence has once been received and then excluded, which has been adopted by the courts, is that the admission furnishes no ground for a new trial, unless it appears that the evidence improperly influenced the verdict. Here the plaintiff testified positively to his ownership of the property. In opposition to him there was no evidence, save that of the fraud and some circumstances which it is claimed went to impeach his character for veracity. On the part of the defendant it is insisted, that it was upon the latter evidence that the jury found the verdict. It is said that they did not believe him; that his testimony was of so little weight
We see no error in the admission of the contract between Henry W. Remington and Ealkner. The most that is objected to it is, that it was irrelevant. The plaintiff was upon the stand as a wifness, and as such, liable to be discredited like any other. He testified to a contract with Ealkner made about the time and almost identical with that produced with Henry W.; and there being no pretense that Ealkner made two contracts, one with each, it was a fact which we think the jury might properly consider with a view to determining the degree of credit to be given to the plaintiff’s statements.
Judgment reversed, and a new trial awarded.