Tinklepaugh v. Rounds

24 Minn. 298 | Minn. | 1877

Gileillan, C. J.

The defendant Rounds, having in her direct examination testified in effect that the piano was hers, bought and paid for by her, it was of course competent for the plaintiff to discredit her by showing that she had made statements or admissions at variance with her testimony.

The admissibility of the discrediting testimony does not depend on the degree of variance between it and the subsequent testimony. If it differs in any material particular it is for the jury to determine what effect such difference in statement shall have on the witness’ credit.

The affidavit of Rounds was admissible for the purpose for which it was offered — to discredit her. It varies from her testimony on the trial, not merely because it only states, as paid by her, one hundred dollars of the price of the piano, while on the trial she testifies to having paid the entire price, but because the whole tenor of the affidavit, taken in connection with the purpose for which it was made, indicates that the piano was either the property of her husband or was owned by them together. One sentence may be taken from the affidavit to show its tenor in this particular:

“Deponent does not know to what place in Oregon he (her former husband) has gone, and that she is informed, and believes, that he left no other property in the state except said piano.”

The exclusion of the affidavit was error.

Order reversed and a new trial ordered.