Maxwell v. Bolles , 28 Or. 1 ( 1895 )

Opinion by

Mr. Chief Justice Bean.

1. It is claimed that the court erred in allowing the plaintiff to testify as to the existence and contents of the alleged promissory note given him by Shirley without first proving its loss or destruction. It is a rule of universal application that the existence and contents of a written instrument, when material and in issue, cannot be proved by parol without first showing that it is not within the power of the party offering such evidence to produce the writing itself. The instrument sought to be proved is regarded necessarily as the primary or best evidence of its own existence and contents, and, if possible, must be produced. This is but an application of the rule that the best evidence of a disputed fact must be produced of which the nature of the case is susceptible: 1 Greenleaf on Evidence, §§ 82, 84; Rice on Evidence, § 146. But in this case the bill of exceptions shows that the fact was elicited upon cross-examination that the note in question was not in possession of the plaintiff, but had been stolen from him two or three weeks before court convened; so that the error, if any, in admitting evidence of the contents of the writing without first proving its loss, was cured by the subsequent testimony of the defendant.

2. And, besides, it may well be doubted whether the existence or contents of the note was really in issue in the case at all. True, the defendant denied its execution or delivery upon information and belief, but in his answer he affirmatively admits the execution of both the note and mortgage, but alleges that they were made and received without consideration, and for the purpose of hindering, delaying, and defrauding the creditors of Shirley, and this admission probably rendered proof of their execution and delivery unnecessary: Veasey v. Humphreys, 27 Or. 515 (41 Pac. 8). From the pleadings it will be observed that the plaintiff claims title and right to the possession of the horses described in the complaint by virtue of a chattel mortgage thereon executed by Shirley on the twelfth day of February, eighteen hundred and ninety-four, which was filed for record at nine o’clock in the morning of said day; while the defendant claims that the writ of attachment under which he justifies was served by taking the property in question into his custody before the mortgage was filed, and that the note and mortgage were given and received for the purpose of hindering, delaying, and defrauding creditors, and especially the said Wright and Davis Brothers; the real questions presented, then, were, first, was the chattel mortgage filed before the attachment; and, second, if so, was the note and mortgage to plaintiff given and received in good faith to secure a bom fide debt?

3. The next error assigned relates to the refusal of the court to compel the plaintiff to answer certain questions on cross-examination. The bill of exceptions discloses that plaintiff ■ testified on his direct examination that the note and mortgage were given for and to secure an indebtedness to him from Shirley for work and labor performed on Shirley’s farms prior to February, twelfth, eighteen hundred and ninety-four. On cross-examination he was asked by defendant’s counsel the following, among other questions: “Was it for work you done for him just before the note was given?” “For what particular length of time did you work for Mr. Shirley, and what dates? and between what dates did you work for him for which the thousand-dollar note was given?” “What time in eighteen hundred and eighty-nine did you commence to work for him?” “What were you to receive a month for your work?” “How much did he pay you on your work between these dates over and above the thousand-dollar promissory note?” To each and all of these questions plaintiff by his counsel objected, whereupon the court sustained the objection and excused the witness from answering. One of the most important questions, if not the principal contested question, in the case, was whether there was any consideration for the note and mortgage under which plaintiff claims possession of the property; and, the plaintiff having testified in chief that it was work and labor performed by him for Shirley, it was clearly competent for the defendant on cross-examination to ask him when he commenced work, when he quit, what time he worked between those dates, what wages he was to receive, and how much he had been paid for his work over and above the amount covered by the note. These were all matters of legitimate cross-examination, and went to impeach the consideration of the very instrument under which plaintiff was claiming the right to the possession of the property in question. If the mortgage was without consideration, it was void as to the defendant, and plaintiff could not recover in the action. It was, therefore, of the utmost importance to the defendant that the right to cross-examine the plaintiff upon this matter should not be denied him. The cross-examination of a witness should always be allowed a free range, and it should not be limited to the exact facts stated in the direct examination, but may extend to other matters connected .therewith •which tend to limit, explain, qualify, or rebut any inference resulting from the direct examination: Ah Doon v. Smith, 25 Or. 89 (34 Pac. 1093); Sayres v. Allen, 25 Or. 215 (35 Pac. 254.) The range and extent of the cross-examination of witnesses is left to the discretion of the trial court, and will be reviewed by an appellate court only in case of an abuse of such discretion, but the bill of exceptions here discloses that defendant was not allowed to cross-examine the plaintiff at all upon the consideration of the note and mortgage, the objections to the questions being that such evidence was immaterial and irrelevant, and the court so ruled. The right to cross-examine the witness was a valuable legal right, of which the defendant could not be justly deprived, and the denial of such right was clearly error.

4. The next question is as to when the attachment under which defendant justifies took effect. The evidence in his behalf tended to show that on Saturday, the tenth day of February, he received the writs of attachment together with a list of the property to be attached, but too late for service on that day. On the following Monday morning, about seven o’clock, his deputy, accompanied by the agent of Shirley who had possession of the property, left Union to go to the Stanton and Jones Ranches, some four or five miles .distant, where the horses were, for the purpose of attaching them. While on the way, and before reaching the Stanton Ranch, they met parties driving some of the horses to town, which they proceeded to attach and list. They then went to the Stanton Ranch, and attached and listed some more of the horses, and then went to the Jones Ranch and completed the attachment, getting through about noon, and returning to Union about two o’clock in the afternoon. The evidence tended to show that a portion of the horses were attached prior to nine o’clock, the date at which the mortgage was filed, and it was admitted that some of them were not attached until after that time. The contention for the defendant is that, in contemplation of law, the attachment dated from the time the officer commenced to take the horses into his custody, and if that was prior to the filing of the mortgage, the attachment took precedence over it, although a part of the horses were not actually seized until after it was filed. But, as we understand the law, a writ of attachment creates no lien on personal property until it is actually taken into the custody of the officer, if it is capable of manual delivery and not in the possession of some third person; and when the property is so situated as to require separate and distinct seizures, the lien as to each attaches only at the time of its actual seizure and taking into custody by the officer: Kuhn v. Graves, 9 Iowa, 303; Lott v. Roosevelt, 9 Cowp. 526; Burhans v. Tibbitts, 7 How. Pr. 77. It is true it is sometimes said that in legal contemplation the law knows no fraction of a day, but common sense and common justice as well require that the exact time may be shown when it will promote substantial justice, and hence, when the statute says that from the date of the attachment the attaching creditor shall be deemed a purchaser in good faith, it simply means from the ac-. tual time that the property is attached, and not from the date of the writ or of the day on which the attachment is made. The mortgage of the plaintiff, if otherwise valid, was therefore a prior lien upon all the property therein described which had not been actually ¿sized or attached by the sheriff at the time h fi'ccl, '’nd the defendant is entitled io o possession of such, of the horses, if any, as he may have actually attached prior to such filing. The judgment of the court below is reversed and a new trial ordered.

Reversed.