Rabinowitz v. Silverman , 223 Pa. 139 ( 1909 )

Opinion by

Mr. Justice Fell,

This was a scire facias on a mortgage. The defense was that only a part of the consideration named in the mortgage had been received by the mortgagor, and that this had been repaid by him. At the trial the defendant’s son testified that he was present when the repayment of the money was made and that the mortgagee had promised to satisfy the mortgage the next day. In rebuttal testimony was received under objection that this witness after the date of the payment alleged had stated that he then knew that his father owed the whole amount of the mortgage. The witness was afterwards recalled and testified that he had made no such statement.

The objections urged to the admission of this testimony were that the statement, if made, was in connection with a compromise offered, and also that ground had not been laid for contradiction of the witness by first calling his attention to the subject. The offer of testimony was made at side bar and the court very carefully excluded any reference to a proposed compromise and admitted only the bare statement of the witness as to the fact of his knowledge that the whole amount was due. While an offer of compromise is not admissible as evidence of liability the distinct admission of a fact by one of the parties is not to be excluded because it was made in connection with a proposition looking to a compromise: Arthur v. James, 28 Pa. 236. There is less reason for excluding the proof of a statement by a witness in conflict with his testimony at the trial because in the same conversation a compromise was suggested.

The right to discredit a witness b,y proof of contradictory statements, without having first called his attention to them, is under our later decisions a matter that rests in the sound discretion of the court: Cronkrite v. Trexler, 187 Pa. 100. A failure to lay a foundation for the impeachment of the witness became immaterial, since he was recalled and given an opportunity to explain or reconcile the statement with his testimony.

The judgment is affirmed.