Good v. Knox , 64 Vt. 97 ( 1891 )

The opinion of the court was delivered by

ROWELL, J.

The statute provides that a party to a civil action may compel an adverse party to testify in his behalf in the same manner and subject to the same rules as other witnesses; but that the party'so called, to testify may be examined by the opposite party under the rules applicable to the cross-examination of witnesses. K. L. 1089. Whatever right the party thus calling his adversary may have to impeach him when he is called to fix liability on himself, either joint or several, we think where he is called to fix liability on liis co-defendant and not on himself, that in respect of impeachment he must be treated like other witnesses, or, in the words of the statute, “ in the same manner and subject to the same rules as other witnesses.” Hence there was no error in excluding inquiry of the defendant Knox as to claimed former contradictory statements by him.

The issue, whether plaintiff had been paid in wood, as defendants claimed, was found in plaintiff’s favor; therefore the exclusion of his offer to show that Harris owned the wood and that he knew it, as tending to show that he did not take it in payment as claimed, worked no harm, neither on this score nor on the score of discrediting the witnesses who testified that he did thus take it; for the jury found the testimony of the witnesses untrue on that point, and they were at liberty on that finding to discredit them on other points, if they thought it did discredit them.

For the same reason the ownership of the wood became immaterial, as did also the legal effect of defendants’ refusal to furnish plaintiff a team to draw it.

The record contains nothing to show that plaintiff’s contract of service was made with Knox in the belief that he was Eaton’s agent in the transaction, induced by a known holding of him out by Eaton as his agent in respect of carrying on the farm ; but as appears by the exceptions and the charge, plaintiff put his case as against Eaton on the ground of a general agency in Knox in respect of carrying on the farm, broad enough to confer authority on him to hire help thereon on Eaton’s account. Therefore the case did not present an aspect of agency by holding out and accrediting as such to plaintiff’s knowledge and belief, and so it was not error to refuse to put it to the jury in that aspect.

Judgment affirmed.