Chicago & Alton Railroad v. Lammert , 19 Ill. App. 135 ( 1886 )

Wilkiit, J.

Ho reason is perceived why the second plea of appellant, if true, does not present a good defense to this action. This defense does not consist in the fact that the deposition of Snrsa was false alone, but rather in the fact that appellee, by his attorney, procured the false testimony knowing that it was false. If the facts alleged in the plea are true, and appellee had, by means of the evidence of 'Sursa, obtained a judgment, no court would have hesitated to set it aside as obtained through fraud. If the fraud was discovered before the fruits had been realized, certainly no court would lend its aid to the party practicing it.

The vital question in this case is, in our opinion, whether or not that plea is true. This beingso, the testimony of Lee Sursa, in whatever form obtained, was essential to appellant’s defense. To overcome that testimony by contradicting it, or impeaching the witness, became equally important to appellee. The evidence of the witnesses Kinder and Murrill was therefore material, and if improperly admitted over the objection of appellant, must work a reversal of the judgment below.

"Wie have been unable to discover any ground upon which the ruling of the trial court in admitting their evidence can be sustained. The novel position is assumed by counsel for appellee that Snrsa is to be treated as their witness and therefore it was competent to show what he had said. There could be but one legal ground for admitting the evidence as to what this witness had said, and that would be for the purpose of impeaching him. To say that his unsworn declarations could be competent evidence for either party would be to contravene one of the plainest and most tirmly established rules of evidence. By the affidavit for continuance, and the admission of appellee that if present the witness would swear to the facts therein set forth, Lee Sursa became the witness of appellant. His testimony thus obtained became available to appellant the same as though he had been present testifying in open court, or his deposition had been taken. His evidence was subject to contradiction and impeachment under the same rules of evidence and practice as though obtained in the usual manner.

He might he impeached by showing- that he had made statements out of court contradictory to his evidence set forth in the affidavit, provided the proper foundation was laid, but not otherwise. The rule is inflexible and without exception, that in order to impeach a witness in this mode he must first be interrogated as to whether or not he made the outside statement, fixing time and place, thus giving him an opportunity to explain. In this case no such foundation was laid, and hence the evidence of the witnesses called to impeach, was improperly admitted. If appellee was at the disadvantage of not being able to lay the foundation for impeachment because of the absence of the witness, he voluntarily placed himself in that position by admitting that he would swear to the facts stated in the affidavit, and can not be allowed to extricate himself by disregarding fixed rules of practice and evidence. E egarding this error as substantial, and affecting the entire merits of the case, the judgment of the court below must be reversed and the cause remanded.

As the case may again be tried it is proper to briefly notice other points made and urged as grounds of reversal.

There is no substantial variance, as we understand the allegations and proofs, but if there was, the question cannot be raised for the first time in this court. There is not even an assignment of error raising that question.

This is not a case in which there is an attempt to set up an accord in defense of a suit on the original cause of action. It is a suit upon the alleged contract to compromise a pending suit. If it is intended to be urged that such a suit can not be maintained until the contract is executed by both parties, the position is absurd. The authorities cited can not be construed to support such a position. The compromise of a suit pending is a good consideration for a contract, and if fairly entered into a suit may be maintained for its breach as in any other case.

There is nothing in the record to show that the infant, or any one on his behalf, repudiates the contract of compromise. The court permitted him to dismiss his suit for the express purpose of bringing this suit. Ho reason is shown nor authority /cited in support of the- position that the attorneys of record of an infant can not bind their client, as in any other case, by a settlement or compromise of a pending suit. In Littotson v. Hargrave, 3 Maddox, 349, it is said, “An infant is ordinarily bound by acts done in good faith by his solicitor or counsel in the course of the suit to the same extent as a person of full age.” Levy v. Levy, Id". 245. The evidence also shows that there was an offer to have a guardian appointed for the infant if appellant so desired, in order to carry out the compromise, but it was not then thought necessary, nor even.to procure the consent of the infant. Mow^ however, it is urged that the contract was not- binding upon the infant and may therefore be repudiated by appellant. To so hold, would defeat the compromise of every suit in which there might be an infant party plaintiff or defendant unless the infant was personally a party thereto. The infancy of the plaintiff was fully known to appellant’s agent who negotiated the settlement, at the time the preliminary agreement was-entered into and at the time the releases were signed, and no objection was then made to the validity of the settlement or1 its binding force upon the parties.

To permit the appellant to now repudiate the agreement upon the naked ground that it chose to negotiate with the attorneys and next friend, instead of the plaintiff in person, in the absence of all objection to the settlement by the infant plaintiff, would be a mockery.

The evidence sufficiently shows that the payment of costs by appellee was to be out of the money paid him by appellant, and it was not therefore necessary to prove such payment, nor even an offer to do so, in order to maintain this suit.

Reversed and remanded.