Degraff v. Hovey ( 1863 )

Ingraham, J.

Upon the trial of this cause, the plaintiff read in evidence an affidavit made by the defendant in regard to the matters in controversy, in which the defendant said he had read an affidavit made by the plaintiff, and that it was false. The pdaintiff then offered to read the affidavit made by the plaintiff, referred to by the defendant in his affidavit, which was excluded, and the plaintiff excepted.

It may well be doubted whether, if the defendant had put the first affidavit in evidence, that it would have furnished any warrant for the admission of the affidavit of the plaintiff therein referred to. The contents of the affidavit were not stated in the defendant’s affidavit, and it was a matter of no moment in this case to know what was contained in the affidavit which the defendant said was false. Certainly the parties could not have made an issue to try whether the plaintiff’s affidavit was true or false, and there could have been no other legitimate object for which it could be put in evidence.

But the case is much stronger where the plaintiff’ puts the defendant’s affidavit in evidence, and then, for the purpose of contradicting or for getting his own statements before the jury, offers an affidavit made by himself.

He could not contradict the defendant’s affidavit, which he made his own testimony; and if he could, there was nothing material in the defendant’s affidavit upon which the defendant could be contradicted by any affidavit of the plaintiff. I am at a loss to see any reason which would have justified the admission of the evidence offered.

Upon the trial, the judge admitted a record of judgment between other persons than the parties to this action, for the purpose of proving a partnership between the defendant in that action and the present defendant, and for the purpose of disproving any fraudulent intent with which the defendant was charged. This judgment was between parties not connected with this action. The plaintiff was in no way a party to it. He could not be estopped by its recovery, and it furnished no evidence of any fact that could be used against the plaintiff. It was in all respects res inter alios acta, and bound neither of the parties, and proved nothing as to either. There is no rule by which its admissibility can be sustained.

The facts established by that judgment were, that the defendant had sold to one Hill goods to the value of $27,000, and that the defendant Hovey had transferred his claim to the plaintiff in the judgment. I doubt whether either of these matters could have been proved on the trial by witnesses who knew them ; certainly the judgment could not be used for such a purpose.

The admission of this evidence was erroneous, and a new trial must be ordered.

Judgment reversed and new trial ordered; costs to abide event.

Sutherland, P. J., and Clerks, J», concurred.