Smith v. Ehanert, 43 Wis. 181

Smith v. Ehanert

43 Wis. 181 | Wis. | 1877

Cole, J.

The plaintiff, when called as a witness for the defendant, among other things, testified as to the indebtedness due him from the defendant, which constituted the consideration of the note in suit. He stated, in substance, that the note was given for some cord-wood, sheep and wool, which he sold the defendant at the time the note was executed. To meet that testimony, and as relating to the same matter, the defendant was ashed on his examination, whether at any time he owed the plaintiff for cord-wood and on account of sheep. The question was objected to, on the ground that a negative answer would tend to discredit or contradict the statements of the plaintiff on the same point; and the testimony was excluded. "We are really unable to perceive any valid objection *182to tbe question under tbe circumstances, and tbink that the defendant should have been permitted to answer it. Tbe inquiry surely related to one of tbe principal facts in issue, and tbe answer might have been important. One ground of defense was, that tbe defendant was not indebted to tbe plaintiff on any account or in any sum whatever, and that tbe note was wholly without consideration. Tbe plaintiff bad testified as to such indebtedness and what it was for. Why should not tbe defendant be allowed to show, if be could, that no such indebtedness existed? Tbe general rule doubtless is, that a party calling a witness to prove bis case, will not be permitted, because the witness gives testimony adverse to him, to show that tbe witness’s general reputation for truth is bad. But to this rule there are exceptions. Says Prof. Greenleaf: “It is exceedingly clear that tbe party calling a witness is not precluded from proving tbe truth of any particular fact, by any other competent testimony, in direct contradiction to what such witness may have testified; and this not only where it appears that the witness was innocently mistaken, but even •where tbe evidence may collaterally have tbe effect of showing that be was generally unworthy of belief.” 1 Greenl. Ev., § 443.

Tbe learned counsel for tbe plaintiff further insists that the question was improper for tbe reason that it was too general, and was leading. No such ground of objection, however, was taken on the trial, and it would manifestly be unfair to allow such an objection now to prevail, to justify tbe ruling of tbe court below. But tbe counsel also insisted that tbe testimony, in effect, was afterwards admitted and went to the jury. This position is not sustained by tbe record. It is true that the defendant afterwards stated in bis examination, that when be took possession of tbe farm which be bad purchased of tbe plaintiff, there were upon it “ about sixteen to twenty cords of wood,” piled. This wood, he said, be bought of tbe plaintiff', hauled away and sold. Tie was then asked if be bad ever paid *183for this wood; he answered/'yes.” He was further asked “when;” the answer to that question was objected to,and excluded. There his examination on that point ends. It is very evident that the answers given do not cover or embrace the entire ground of indebtedness sworn to by the plaintiff.

Therefore, without considering the other questions discussed by counsel, we think there must be a new trial on account of the error in excluding the testimony above referred to.

By the Court. — Judgment of the circuit court reversed, and a new trial ordered.