Harrington v. Weselowski , 104 Mass. 184 ( 1870 )

Morton, J.

At the trial of this case, the principal question was, whether the sum of $2699.20, paid by the defendant to McCartney, the collector of internal revenue, was so paid by the plaintiff’s request, and also whether it was received by McCartney as a payment of taxes due by the plaintiff to the United States. The defendant called McCartney as a witness, who testified that he received it in payment of taxes due by the plaintiff. He also testified, on the direct examination, that the money had not been paid over to the government; and, to explain this fact, stated that he had been summoned as trustee in a suit brought by the government against the plaintiff. This testimony, that he had been summoned as trustee, was not objected to; and we are of opinion that, if it had been objected to, it. could not have been excluded on the ground that it was collateral and immaterial. The main question was, whether he received this money in payment of taxes due by the plaintiff The fact that he had not paid it over in the'usual course of business would, if unexplained, have a tendency to throw doubt upon his testimony. It disclosed conduct of the witness inconsistent with his main statement. And the fact that he had been summoned as trustee would tend to explain this otherwise suspicious circumstance, and thus confirm his testimony upon the main question. These facts were not purely collateral; they were so connected with the chief transaction which was the subject of inquiry as not to be matters wholly foreign to the issue on trial. This being so, it was competent for the plaintiff to contradict the witness by showing that no such trustee suit had been brought as be testified to, but that the suit referred to by him was one in which the defendant in this action was summoned as the trustee of the plaintiff.

There is another view of the case, which leads to the same result. McCartney having testified that he received this money as an absolute payment of taxes due by the plaintiff to the government, it was competent for the plaintiff to show any acts or declarations of his which were inconsistent with this testimony. It appears, from the bill of exceptions, that the trustee suit, in regard to which both parties introduced testimony, was instituted at the request and by the procurement of McCartney. The fact that he procured the defendant to be summoned as the trustee of the plaintiff shows that he then understood that the defendant was indebted to the plaintiff, and is inconsistent with, and tends to contradict, his statement that the defendant had paid taxes on behalf of the plaintiff, which would extinguish his indebtment. It seems, therefore, that the evidence excepted to was admissible upon this ground. Exceptions overruled.