| Wis. | Jun 15, 1869
The only legal questions presented on this appeal arise on the rulings of the court, in admitting the evidence of what Herrick said at the time of demanding the shawl, and in refusing to grant a new trial.
-The objection to the admission of the evidence was, that it was offered to impeach Herrick by showing that he had made statements about the matter in' conflict with the testimony in his deposition; and that the proper foundation had not been laid for such impeachment, by first calling his attention to it and asking bim if he had made such statements. If the statements had been made subsequent to the transaction to some third party, the objection would be good. It would then present the ordinary attempt to impeach a witness by showing that he has made statements about the matter in controversy different from those testified to by him. The rule in such cases is familiar,.that as the foundation for such impeaching testimony the witness must first be asked whether he had so stated, so that he may have an opportunity to give such explanation as he may desire.
. But here the testimony objected to was admissible as original, independent testimony, upon the ground that the statements in question were a part of the res gestee. They were the statements made by the agent of the plaintiff to the defendant at the very time of demanding, the property which he claimed to have lost. He represented the plaintiff fully in that behalf. And his statements in relation to the property, made to the defendant at the time of the demand, were original evidence, and admissible as such. The fact that they may have tended
We cannot interfere with the verdict upon the question of fact. It is not enough that we. would not have found such a verdict. The question is, whether, upon any legitimate construction of the evidence, it can be supported. Where this can be done, and the court below has refused a new trial, this court does not interfere, even though it may think the weight of evidence was the other way. Here the plaintiff’s case depended entirely on the testimony of Herrick. When asked where he stopped while in Baraboo, he answered, at the defendant’s hotel, without mentioning any other place. It appeared, however, from the defendant’s testimony, that Herrick staid, the first of the two nights he remained at Baraboo, at another hotel. This fact, together with the one already referred to, that at the time of demanding the shawl he is proved to have said it was a small face shawl, instead of the large one to which he testified, certainly furnishes a foundation upon which the jury might discredit the accuracy of his statements in his deposition. We do not say that they ought to have discredited his evidence upon that account, but that these facts furnish a sufficient reason, where the jury did so, why this court will not interfere with the verdict, the court below having refused to do so.
By the Court. — The judgment is affirmed, with costs.