Campau v. Traub , 27 Mich. 215 ( 1873 )

Cooley, J.

This is a suit brought by the lessor against his lessees to recover two months’ rent. It was tried once before, and Daniel J. -Campau, Jr., Avas then a Avitness for the plaintiff, and his examination and cross-examination were taken doAvn in writing by the official reporter. For a second trial it was stipulated by the parties in writing that the “ testimony ” of said Avitness, thus taken on the former trial, might be used in evidence. When, however, the written evidence had been" offered.and the direct examination had been read, the defendants’ counsel stated they did not .want the cross-examination, and objected to its being read. The plaintiff claimed a right to have it read, but the court excluded it.

The ruling-Avas erroneous. The stipulation covered the whole testimony, and the plaintiff had a right to the whole.’ Indeed, in this court no serious attempt has been made to support the exclusion; but it is insisted that the judgment cannot 'be reversed on that ground, because the bill of exceptions does not set out the cross-examination as taken down, so ’ that Ave may see Avhether the defendants Avere. injured by the exclusion; and- consequently we cannot see that an error was committed to their prejudice. But while it is unquestionably the duty of a party who complains of error to show its existence, it generally devolves upon the other party, on Avhose motion "the error was committed, to satisfy the court that the complaining party was not injured by it. And Avhen legal evidence once taken in the case and presumptively relevant to the issue, is excluded, we cannot assume that the party offering it was not injured by the exclusion, when Ave have no better basis for the assumption than the fact that the excluded testimony was the cross-examination of his own witness. The testimony-on cross-examination often has an important bearing on the testimony in chief, either by way of qualification or of supplement; and as pointed out in Wilson v. Wagar, 26 Mich., 452, is to he regarded as part of the testimony given on behalf of the party calling him, and may be highly important to his interest. We cannot, therefore, say that the error was immaterial.

It is also assigned for error that the court erred in refusing to allow the. plaintiff ' to put in evidence certain receipts which defendants had taken for the rent for certain months preceding those for which recovery was sought in this suit. ' The relevancy, of these receipts to the issue being tried does not appear. In connection with other evidence they might have had some tendency to explain the papers which were put in evidence by defendants to prove payment of the demand sued for; but by themselves they would seem to be, as the court held them, irrelevant.

It follows from what has been said, that the judgment must be reversed, with costs, arid a new trial ordered.

The other Justices concurred.