Savage v. Drake

8 Wis. 272 | Wis. | 1859

By the Court,

Smith, J.

It will be perceived upon slight reflection, that it is utterly impossible for the three members composing this court to discuss at length, or even notice seriatim, all the points which counsel .very properly raise in their briefs upon the cases presented. Although these points are considered in consultation, yet it ought not to be, and cannot be expected, that in the written opinions or “ decisions” of the cases respectively, all of the questions raised are to be treated of as propositions of law, and discussed at length, each of which might form the subject of an essay.

In this case there are several questions of grave interest and import, which would afford ample scope for a mind at leisure. But this must be foregone in the present case, and our attention confined to the only exception taken on the trial, which materially affects the merits of the case.

It appears from the bill of exceptions that the plaintiff below on the trial in the circuit court, called W. F. Ward as a witness, who testified that he called on the defendant some time about the 7th of June, 1856, as the agent of the plaintiff, and asked him to pay for the trees, and that Savage refused to pay. On the cross examination the witness was asked what reason, if any, the defendant gave for not paying the bill for the trees. To this question the counsel for the plaintiff objected, and the objection was sustained by the court

There is no doubt but there are many questions proper to be put upon cross examination, designed either to test the memory or credibility of the witness, which may or not be at all material to the real merits of the case, or the answer to which would be of serious moment. It is in all such cases incumbent upon the plaintiff in error to show error affirmatively. In this case the witness was asked what reason, if any, the defendant gave for not paying the bill for the trees. Whether his answer to the question would have been material or not we are not informed. If the the party had made an offer of matter material to the case; or such matter so material -were necessarily involved in the answer to the question propounded; or if the party had made a distinct oifer to prove facts material, and the offer had been rejected, then we should have no hesitation in pronouncing upon the error alleged in the ruling of the court below. But nothing of this kind appears. It does not appear that the defendant offered to prove that he gave any reason at all for not paying for the hill for trees. In all cases where testimony is sought to be introduced and is rejected, the party alleging error must show that there was error material. It should appear what evidence the party expected, and his offer should be distinct and explicit; or he should show- some point of error not materially abstractional or contingent, but so assign his grievance that it can be made a part of, and enter into the case in error. Suppose in this case the witness had answered that the reason given by the defendant below for not paying the bill was, that he had not the means. Would this be at all material ? Or, that it would be inconvenient to pay ; or, in general terms, that the bargain had turned out to be a bad one on his part. Surely such an answer would be entirely immaterial, and no defence could be predicated upon it.

We are aware that this case (in regard to the point in question) is different from that of Millett vs. Hayford, 1st Wis., 410, and that of Sewell vs. Eaton, 6 Wis., 490. In these cases the parties sought to introduce direct and affirmative evidence on their own part, by propounding in one instance a question to the witness which was objected to, and exception taken without intimating to the court the nature of the evidence sought, or making any offer to prove or disprove any fact relevant to the case; in the other a letter was offered and rejected, and the bill of exceptions failed to show the contents of the letter, and hence this court could not judge of its materiality or relevancy.

It is true there is a difference between the attempt to introduce direct and affirmative evidence, and the propounding questions to a witness on cross examination, when the disclosure of the answer sought might defeat the object in putting the question. We have tried to keep this distinction in view, and have felt the difficulty there must be in drawing a definite line of demarkation. There must be some limit to questions upon cross examination. Counsel cannot be permitted to give their imagination or zeal full scope, and assign error to every overruling of the court. It is not worth while to discuss this matter further than to say, that from the whole case we have failed to discover any error in the proceedings of the court below in respect to the particular matter here complained of