Batdorff v. Farmers' National Bank ( 1869 )

The opinion of the court was delivered, May 11th 1869, by

Thompson, C. J.

The exceptions to the admission in evidence of the deposition of James L. Nutting, are, so far as anything has been disclosed, all unfounded. The first was general, to the entire deposition. Portions of it were unquestionably testimony, and this would overrule the general objection. If it were evidence for any purpose, as against a general objection, it was admissible. The 2d and 3d exceptions to it, of which the specifications of error are predicated, need not be considered. These assignments of error are totally irregular, and I may add, are without merit, if we at all comprehend them. In view of the nature of the testimony, there was nothing wrong in admitting evidence of the relation existing between the defendant and the Seltzers, as far back as proposed. It might be a means of explaining their relation at a later period. The investigation involved questions of fraud by the defendants and the Seltzers, against creditors, and in such cases great latitude of investigation is allowable. There is no error in the particulars complained of so far. The 5th assignment is not so easily disposed of. It is predicated of a refusal to permit the witness, Sallada,, to be asked the following question on cross-examination, — “Are you a creditor of C. A. & A. M. Seltzer ? ” The counsel proposed to follow it, if answered as they expected, with another, “ to show that the witness had an interest in the question in controversy, in securing his claim, through making Batdorff liable for Seltzer’s debts.” The proposition was to show a state of facts from which a jury might be justifiable in inferring a bias in the mind of the witness against the defendant, and therefore to affect his credit. To show bias on behalf of the witness was the right of the defendant, if he could. In Cameron v. Montgomery, 13 S. & R. 128, it was held that the party against whom a witness has testified, may show anything which might in the slightest degree affect his credit, and the judgment in that case was reversed, because the court below refused to allow the witness to be asked, “ whether the plaintiff did not buy (the witness’s) property at his (the witness’s) instance.” “ It was a circumstance,” said Tilghman, C. J., “which might show that the witness was under obligation to him, and this might have had some effect on his evidence, by exhibiting a bias.” We cited and approved this rule in Ott v. Heighten, 6 Casey 451, and reversed in that case because it had been disregarded on the trial below. If the witness had himself a claim against the Seltzers, and was called to sustain a claim by a creditor, which was to be secured only by making Batdorff a partner with them, was it not possible, nay, likely, that he might feel a bias for a result which he might suppose would strengthen the probability of success in his own case ? It was proper to let the jury consider this in weighing his testimony, and this could be done only by asking the question. It should have been allowed, therefore, and if it disclosed an interest in the question, it would be for the jury to say whether that had any influence to bias, or color his testimony, or not. They would credit him fully or not, just as they would consider him clear of bias or otherwise,.in giving testimony. The rules of evidence are the results of experience, and it is best to stand reasonably strictly by them. It is not easy to say how a voyage may end, if the departure is on a wrong course. This error we think sustained. .

We are also of opinion that there was error in overruling the offer which constitutes the 6th assignment. As we understand it, it was material, in answer to the plaintiff’s testimony, tending to show, that after the sheriff’s sale of the machinery of the Seltzers in 1861, and purchase by Batdorff, that the business was carried on for the joint benefit of t]je Seltzers and Batdorff. The offer was to show that the real estate of the Seltzers, including the foundry and machine-shop, was sold on execution in 1862 to the witness Pluber, and that he purchased for himself, and afterwards sold and conveyed to Batdorff. It was some evidence at least, on the question, whether the foundry and machine-shop, being the individual property, if it were so, did not tend to negative the idea of a partnership with the Seltzers, carried on in them. Unexplained it would convey that idea; at least, the defendant had a right to insist on the inference from it in support of his position that he was not a partner, but carrying on business for himself. Whether it would have weight or not in support of the defendant’s position, is not the question with us. It was relevant testimony, and.should have been admitted, and that is all we have any concern with. A controverted fact can only be satisfactorily ascertained and determined upon, after hearing all proper testimony offered on both sides. We think this error is sustained.

The 7th assignment of error was in rejecting the offer to contradict Mrs. Sallada, in regard to several matters stated by her in testifying for the plaintiff. These matters were proved by the plaintiff, and it was undoubtedly the right of the defendant to disprove them if he could, or as far as he could. If a witness fabricate a story with circumstances, the disproof of the circumstances is generally the only possible way of disproving the material facts. 1 The plaintiff thought proper to prove by Mrs. Sallada, that she lent money to her brothers, the Seltzers, amounting to several thousand dollars, and that she bought and paid for a house in Reading out of her own means. At this distance from the scene of controversy we are not able to see the relevancy of these facts, but we are to presume that the plaintiff did, and called them out from this witness. When, therefore, the defendant proposed to prove that some of these things stated by the witness as facts were ■ untrue, had no existence, with a’view to contradict her, it was not the plaintiff’s privilege to claim its exclusion on the ground of Immateriality. He gave the fact in evidence and opened the way ¡for its disproof in order to discredit the witness. The offer, unI doubtedly, amounted to a contradiction, by proving facts tending '•to show the inability of Mrs. Sallada to lend the money or buy the house. We think the testimony should have been received. We see nothing requiring notice in the next two assignments of error, being the 8th and 9th. As to the 10th, we have only to say tho offer was rightly rejected if the plaintiff had nothing to do with the combination alleged between the Seltzers and others to fix liability on Batdorff as a partner with them. Nothing like this was> shown, so far as we can discover, and the testimony was properly refused.

The 11th assignment of error is so utterly in disregard of th» rules of the court that we will not notice it. The 12th and last assignment is to the charge of the learned judge, in saying, “ that there was other evidence given by the defendant, that he would have rejected, if it had been objected to,” without defining the parts of the evidence that he would so have rejected. We think this was an error, and was not cured by the remark which followed, “ that the jury might take into consideration everything that had been received in evidence, and give it whatever weight they might find it to possess.” The jury would certainly understand from the remark, that at least some portion of the testimony was improperly before them, and as there was no designation of the part, they would be as liable to apply the remark to one portion of the testimony as another, and thus the whole come to be looked upon with doubt and distrust. Important and relevant portions might as readily be supposed to be the parts alluded to, as that which might have been in the judge’s mind at the time. In this way the defendant’s testimony might be literally set aside, without the chance of an exception to the court’s opinion in reference to any of it. We fear the qualifying remark which we have referred to may have had but little effect upon the jury. They would not be likely to regard the testimony as of much weight with an indefinite condemnation of portions of it, without knowing what portions were intended by the court. We do not say that it had any prejudicial effect upon the defendant’s case, but it may have had, and he was not bound to stand the risk of it. For these reasons we are constrained to sustain this error.

The judgment is reversed, and a venire de novo is awarded.