Suit v. Bonnell , 33 Wis. 180 ( 1873 )

Dixon, 0. J.

It was clearly error for the court to rule out the question put by the defendant to the plaintiffs’ witness, Shears, the object of which was to show that the witness was interested in the event of the suit. It is true that such interest does not disqualify the witness from testifying, but the fact may nevertheless be shown for the effect it may have upon his credibility. It may be shown for the purpose of better enabling the court or jury to determine the degree of credit to be given to his testimony, or to disregard it entirely, where, upon that fact alone, or taken in connection with others, the proofs are of a kind to produce such' conviction. Phoenix Insurance Co. v. Sholes, 20 Wis., 35; Cornell v. Barnes, 26 id., 473.

The court also erred in excluding the testimony offered by the defendant tending to prove the counterclaim set up by him for money which he paid for freight and charges on goods sent to him by the plaintiffs, and which he refused to accept. The evidence on the part of the defendant tended to show a state of facts which made this testimony admissible. If, as the defendant attempted to prove and his evidence tended to show, the bargain with the plaintiffs’ agent was, that he was to take back the whisky and pay the charges advanced by the defendant, in case the whisky proved unsatisfactory to the defendant, or not equal to the sample, then it was proper that the defendant should be permitted to prove the amount of such charges.

The court furthermore erred in ignoring the defense made to the action, or to that part of it which was to recover the price of the five barrels of Capital Bourbon and the one barrel of Taylor whisky. The court did so by omitting to submit to, or by withholding entirely from the consideration of, the jury the evidence given on the part of the defendant tending to show what the bargain was, as the defendant claimed it to have been, between himself and the agent of the plaintiffs through whom it is alleged the whisky was purchased. It did so both in its general charge and by refusing to grant the defendant’s sixth request to instruct, which should have been granted. If-the understanding between the defendant and the plaintiffs’ agent was, that the whisky should remain with the defendant until, the agent returned, who was to make all things satisfactory or take back the whisky and pay the charges, this was a good defense to the action for the price, and excused the defendant from giving notice to the plaintiffs that the whisky was not satisfactory and that he refused to accept it. The evidence on the part of the defendant tended to establish this defense, and the cause should have been submitted to the jury in a manner to have given them an opportunity to consider and pass upon it.

By the Court.— Judgment reversed, and a new trial awarded.