The opinion of the court was delivered, February 28th 1870, by
Sharswood, J.
The first assignment of error is, that the court *63below erred in rejecting evidence offered for tbe purpose of contradicting a witness examined on behalf of tbe plaintiff below. Tbe declaration was on a note given, as was alleged, for services due tbe plaintiff, as tbe salesman of tbe defendants, with tbe common counts. One of tbe questions involved in tbe controversy appears to bave been tbe period of time tbe plaintiff bad been in tbe service of tbe defendants. He bad been absent abroad and returned. Tbe witness bad been asked in cross-examination whether be bad not said to Mr. -Dubosq that be bad received a letter stating that Mr. Curran was not coming back ? Tbis be denied. Mr. Dubosq was produced by tbe defendants, and they offered to prove by him that tbe witness bad said to him in the fall of 1866 that be bad a letter from tbe plaintiff to tbe' effect that be was not coming back to tbis country; that be bad not informed Mr. Hildeburn of Mr. Curran’s intention as yet, but that if be (Mr. Dubosq) would bring bis nephew up to-morrow, be would tell Mr. Hildeburn to-day; and that in consequence of tbis conversation be did take bis nephew to Mr. Hildeburn’s store tbe next day, and bis nephew was employed in Mr. Curran’s 'place. Tbe rule is well settled, that if a witness is cross-examined to a fact purely collateral and irrelevant to tbe issue, and answers it without objection, be cannot be contradicted. Tbe reason is obvious. Tbe investigation might thus branch out into any number of immaterial issues upon tbe mere question of tbe credibility of a witness: 1 Greenl. on Ev., § 448; Griffith v. Eshelman, 4 Watts 51; Elliott v. Boyles, 7 Casey 65. Was then tbe fact that tbe plaintiff bad written from abroad that be did not intend to return, and in consequence of it another salesman bad been employed' in bis place, material ? Clearly not. If tbe plaintiff bad returned in point of fact, and with tbe knowledge and consent of tbe defendants resumed bis position in their 'store, be made out bis claim for services subsequent to bis return, otherwise not. It mattered not what bis intention may bave been, nor whether tbe defendants bad employed another to supply bis place in the interim. Tbe test of whether a fact inquired of in cross-examination is collateral is tbis, Would tbe cross-examining party be entitled to prove it as a part of bis case, tending to establish bis plea ? Applying tbis test, it is evident that tbe learned judge below committed no error in rejecting tbis offer.
Tbe second assignment of error is to tbe refusal of tbe court to charge as requested in tbe defendants’ fourth point, which was, that “ if the jury believe that there was nothing due to tbe plaintiff by tbe defendants at tbe time tbe note süed on was given, tbe plaintiff cannot recover in tbis action.” The plaintiff had given in evidence tbe note and there rested; but tbe subsequent evidence, both on the part of tbe defendants, and in rebuttal on tbe part of tbe plaintiff, placed before the jury tbe whole question, of what, *64if anything, was due to the plaintiff under the common counts. That evidence was received without objection on either side. Had the defendants simply shown that there was nothing due at the time the note was given, an offer by the plaintiff to prove á claim for subsequent services, if objected to, would have Been inadmissible. It would have been a new case not in rebuttal. But the evidence having been received without objection, if upon the whole it appeared that anything was due to the plaintiff at the time the action was brought, he was entitled to recover that on the common counts, whether there was anything due at the time the note was given or not. It would, therefore, have been a manifest error for the court to have charged as requested.
But we are of opinion that the learned judge below fell into an error in declining to charge as he was asked in the fifth point of the defendants, which forms the subject of the third assignment. That point was in effect, that if nothing was due on the note at the time it was given, the jury ought to allow nothing upon it in determining what amount may be due to the defendants. This point was evidently framed in reference to the claim of the defendants to a verdict in their favor under the plea of set-off, and so as not to appear to admit that anything was due to the plaintiff. But as far as the law was concerned, it mattered not whether the balance finally ascertained should be found in favor of the plaintiff or the defendant. The note was primá. facie evidence between the parties, but that was all. If it was without consideration, it]!,was unavailable as evidence of indebtedness. If, therefore, the defendants had proved to the satisfaction of the jury, that at the time the note was given nothing was due, they were bound to dismiss it from their consideration, and confine their attention to the question, whether any, and what amount, either party was entitled to upon a just settlement of the account, without regard to the note. This assignment of error is therefore sustained.
The fourth assignment is, that the court erred in declining to charge as requested in the defendants’ eighth point. This was in substance, that if the jury believed that a certain item in the defendants’ book to the credit of the plaintiff had been entered by their book-keeper without their knowledge or consent, they should disregard it altogether. The fact may have been very important as a question of evidence, to rebut the presumption arising from the entry, that the defendants had not known of it or consented to it; but if, notwithstanding there was proof that the item objected to was a proper entry to the plaintiff’s credit, it was entirely immaterial whether it had been made with the knowledge or consent of the defendants or not. The learned judge below therefore committed no error in declining to charge as requested in this point.
Judgment: reversed, and venire facias de novo awarded.