Shelp v. Clark ( 1909 )

DAYTON, J.

The uncontroverted facts are that Miss Sargeant on July 37„ 1905, assigned all her rights against defendant to plaintiff, and on September 7,- 1905, delivered, to .defendant the art education books, and on the same day gave to defendant her receipt for $135, “the balance due on the sketches,” etc., and that the -summons in this action, dated August, 1905, upon a complaint verified August 3, 1905, was served September 8, 1905. Miss Sargeant testified that after the assignment she knew the claim no longer belonged to her but accepted the $135 as part of a new understanding. This explanation is irreconcilable with the language of the receipt, to wit, “the balance due on the sketches.” On cross-examination she was- asked:

“This new understanding was in substitution for any previous understanding, was it not? (Excluded. Exception.)”

This was error. The situation in which Miss Sargeant had placed herself entitled defendant to the fullest cross-examination. Much is sought to be made of the correspondence in evidence and notes at interview, but all of it is prior to the receipt dated September 7, 1905.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.