Perkins v. Adams , 46 Mass. 44 ( 1842 )

Hubbard, J.

A new trial is moved for in this case, by the plaintiffs : 1st. Because a part of the answer of Alonzo Cutter, a witness whose deposition was taken by the plaintiffs, to one of the defendant’s interrogatories, was not permitted, by the presiding judge, to be read in evidence to the jury. 2d. Because he admitted a letter of said Gutter to William Fletcher, jr. to be read to the jury.

The witness was asked what measures or steps he pursued ; whether he made any communication in relation to the mortgage not being recorded ; and what directions he received in consequence of such communication. And the objection is to his conversation with his mother in law, the mortgagee, and one of the plaintiffs.

He was certainly bound to tell the steps which he pursued, and the directions which he received ; and we think what he stated at the time to the party was a part of the steps he pursued, was responsive to the general inquiry, and that the answer, on the whole, would be incomplete without the conversation as constituting a part of the communication. If the witness had stated that he did make a communication, without stating what it was, it might have been argued that he withheld it, because it would be unfavorable to the plaintiffs, and so the plaintiffs would have been prejudiced.

A witness may always be subjected to a strict cross examination, as a test of his accuracy, his understanding, his integrity, his biases, and his means of judging. But the party who puts the questions must risk the answers, and if unfavorable to him, he cannot, for that cause merely, reject them, but if favorable, retain them. We think the whole answer should have been admitted. If the part rejected had been, in our opinion, immaterial to the issue, we should not have deemed the rejection of it a cause for a new trial ; nor if the things testified to were proved satisfactorily by other testimony. But it appears to us that the answer is of some importance in its bearing on the issue, in respect to matter not proved by other witnesses. The verdict therefore must be set aside and a new trial granted.

In relation to the letter of the witness to Fletcher, the admission of which was objected to as not contradicting the witness, we think it relates to the subject in difference between the parties ; and as its tendency might have been to discredit the witness, we are of opinion that it was rightly admitted.