2 Hilt. 71 | New York Court of Common Pleas | 1858
The statements made by
The declarations of Kent, as they formed no part of the res gestae, were not admissible. The declarations or statements of one, neither a party nor a privy, are receivable only for the purpose of contradicting him when he has been examined as a witness against the party who offers the prior statement with the design of impeaching him, and is then only receivable if he has been asked, while under examination, if he has made such a statement or declaration. But although the evidence, when offered, was improperly received by the justice, the defendant cured the error by calling Kent to the stand as a witness, and examining him, not only in respect to the declarations attributed to him, but upon the subject matter of the suit generally. The most material declaration of Kent, given by the plaintiff in evidence, was his statement to the witness Tooker that he had taken the goods to West Bloomfield with directions not to deliver them without the money. When Kent was examined as a witness by the defendant, he testified that the only instructions he ever received respecting the goods, was what was written on the bill accompanying them—“ Please collect the bill.” This formed no part of his duty as a carrier. It was a mere request, which he might or might not comply with; and would not, of itself, be sufficient evidence of an engagement or undertaking on the part of the defendant not to deliver the goods unless paid for. But Kent did not deny that he told Tooker that, when he took the goods, he received directions not to deliver them without the money. The defendant did not interrogate him upon that point, and the justice therefore had the right to conclude that he made such a statement. If he did, it was in conflict with what he swore upon the trial; and, as there was no deni.d that such a statement had been
That the error of admitting the declaration of Kent was cured by the defendant’s making him a witness, will appear very plainly. These declarations or previous statements of the witness were clearly admissible to impeach or contradict the testimony he gave on behalf of the defendant; and, as they were already in evidence, it would have been an idle ceremony to recall the witness Tooker to give the same testimony over again.
Where it is designed to impeach the credit of a witness by showing that he has made statements inconsistent, or in direct conflict with what he has sworn to upon the trial, it is necessary for the party, who designs to impeach his credit, to ask him, while he has him under examination, if he has made such statements, that the witness’ attention may be called to the fact, and an opportunity afforded him either of denying it, or of stating what he did say, or of giving any explanation that may tend to support the consistency or integrity of his sworn statement. But in this case the witness and the defendant had all the benefit which this rule was designed to secure. Kent was in court when Tooker was examined. He was called himself, afterwards, as a witness, and an ample opportunity was afforded him to deny the truth of Tooker’s statement, or to give any explanation that either lie or the defendant deemed essential. The defendant neglected, or did
If the justice had believed the statement of Kent upon the trial, that he left the package at a store, where he was directed to leave it by the person to whose care it was addressed, and that all the instructions he received with it was to collect the bill, it would have been an ample defence. But it was in evidence that Kent told Tooker that he had directions not to deliver it without the money, but had delivered it without the money; that he had not been as careful as he should have been, as he had just bought out the express, and was anxious for patronage. Tooker’s testimony to this effect was not denied, qualified, or questioned by Kent when he came upon the stand. The justice, therefore, was bound to conclude that Kent had so told Tooker, and was at liberty to infer that what he then told was the truth. He was at liberty to infer it from the silence of Kent respecting a statement so materially in conflict with the facts, as he represented them upon the trial, from the omission of the defendant to question him upon the point, and from the fact that, after a suit was commenced against the defendant, there may have been a strong motive on the part of Kent to represent the facts to be otherwise, to prevent a recovery which might lay the foundation for a subsequent suit against him.
I think there was sufficient in the evidence to warrant the conclusion of the justice that the defendant agreed, when the package was entrusted to him, not to deliver it unless the money was paid; and if he did, he is answerable for its Value if he assumed the responsibility of delivering or parting with it without receiving the money. By such an act he takes the risk, which the owner was not willing to take, of trusting to the credit or future ability to pay, of the person to whom he delivers it. It was in evidence, and not contradicted by Kent, that Kent said he should not have delivered the goods, but he thought Livingston was responsible. So far, therefore, as respects the defendant’s liabil
To entitle the plaintiff to recover in a case like this, all that it was necessary for him to show was, what lie did show, that the defendant wrongfully delivered the goods. This, prima facie, is sufficient to entitle him to recover their value. Devereux v. Barclay, 2 B. & Ald. 703; Cooper v. Willamot, 1 Man. Gr. & Scott, 672; Loeschman v. Machin, 2 Starkie, 311; Bryant v. Wardell, 2 Exchq 479; Valpy v. Saunders, 12 Jurist, 483; 1 Chitty’s Pl. 140, 141.
Judgment affirmed.