Newton v. Jackson , 23 Ala. 335 ( 1853 )

PHELAN, J.

It was entirely competent for the defendant, Jackson, to show the consideration of the note on which he was sued. This he does by the testimony of his father, James Jackson, who, both in tho direct and cross examination, states the substance of the agreement between plaintiff and defendant for the purchase of the slaves, Eliza and her child William, tho knowledge of which he derived from declarations of the plaintiff, and declarations of the defendant called for by the plaintiff on cross examination. A part of this agreement he shov/s was, that, in consideration that plaintiff agreed to sell Eliza and her child, at the price he paid for them at sheriff 5s sale, to the defendant, he, the defendant, agreed to give his note for $847 25, (tho note sued on,) for debts previously due from the father of defendant to the plaintiff, and which had been discharged under the bankrupt law. The written agreement was silent as to the consideration of that note, and therefore it could be proved by parol, without in any manner conflicting with the rule in regard to contradicting written instruments. The testimony of this witness also went to show, that the slaves had been returned to the possession of the plaintiff, a fact conducing to prove that the agreement between plaintiff and defendant, of which the note in suit formed a part, had been rescinded by the parties.

The motion to exclude the entire deposition, upon the ground that it went to contradict or vary the written agreement, was properly refused. The parol testimony, in fact, agreed with the written instrument, as far as that went, and the proof in relation to the consideration of the note, and the rescission of tho agreement, could not be affected by that objection, at all events.

The special exceptions taken to the parts of the answer to the fifth direct interrogatory, particularly designated in the statement of the case, have not been urged by plaintiff in error upon our attention, and from such examination as we have given them, we do not consider them well taken.

The body of the answer to the fifth cross interrogatory, is directly responsive to tho question put by plaintiff himself, calling for tho declarations of tho defendant; and although it contains also matter that is nor responsive, and which for that reason is not competent, the objection to the answer was general, and, therefore, properly overruled. The rule upon this subject is familiar.—Borland v. Walker, 7 Ala. 269; Murrah v. Branch Bank at Decatur, 20 Ala. 392.

The objection to the answer to the third rebutting interrogatory, was properly overruled. The answer was responsive, and tho proof competent.

The objection to the answer to the fourth rebutting interrogatory, was general, and, therefore, properly overruled, although it contained some hearsay evidence not competent, tho body of the answer being competent.

The witness, James Jackson, was asked to look at the note on which this suit was brought, and to say whether he had ever seen it before. He answered that he never saw it but once, and that was in the summer of 1840, or spring of 1850, at which time it was in the possession of the plaintiff*. Ho then gave his testimony in relation to the contract and agreement of the parties respecting this note, as before stated. The plaintiff after-wards called a witness, (his attorney,) who testified, that the note was in his possession at the time when James Jackson swore it was in the possession of the plaintiff. Thereupon the defendant called witnesses to sustain Jackson’s general character for truth and veracity. To this plaintiff objected, and said that he did not aim to impeach the credibility of the witness Jackson, but would not consent to withdraw the testimony he had offered in regard to the possession of the note. Upon his refusal to withdraw tho testimony, the court permitted the defendant to call witnesses to sustain the general character of the witness, James Jackson, and plaintiff excepted.

If the testimony adduced by plaintiff to contradict what Jackson had said about the possession of the note, was not intended to impeach his credibility, it was wholly irrelevant.— Where the note was, in whose possession in 1849 or 1850, was, of itself, wholly im material to the issue. The question in relation to its-possession only became material as a means of testing either the accuracy of the recollection of Jackson, or his truthfulness; for, when asked if he had seen it before, he answered that he had, and gave time and place. The act then of the plaintiff in calling a witness to contradict Jackson in this matter, could have no other legitimate object than to impeach his testimony. This object the plaintiff disclaimed, but refused to withdraw his testimony, The right of the defendant to call witnesses to sustain the general character of Jackson, under these circumstances, was clear.

The motion of the plaintiff, “to reject all the testimony of the witness Jackson in reference to the note and agreement,” was too general and indefinito to be noticed. It is the business of the parties and their counsel to make their points clear and specific. The responsibility and labor of those who have to decide is great enough, when the propositions laid before them connected with the case are precise and plain, Hence, when the mind is at a loss readily to understand the ground which an objection or motion is intended to cover, a court may and ought to refuse to grant it for that reason.—Donnell v. Jones, 13 Ala. 506.

The charge asked by the plaintiff was properly refused,— Whether “ the note was independent of the agreement,” or whether the agreement was or was not the “ consideration of the note,” Avere both questions of fact, AYhich it was the right and duty, of the jury to settle according to the proof. The charge as asked made the court assuine the right of deciding these questions of fact, and Avas, therefore, properly refused.

From what has been said it Avill appear, that we find no error in the record, and the judgment below is affirmed.