Riddle v. Stewart

the opinion of the Court was delivered by

Green, J.:

“The transaction in controversy in this case was, in no sense, a gift. A gift is a gratuity, and nothing of that kind was claimed by the defendants. The contract alleged by them was, in legal substance, a sale; a transfer of title upon the payment of a full consideration, and upon that issue the case was thoroughly tried, and carefully committed to the jury by the learned Court below. The defendants being already in the possession of the goods, no formal delivery of possession was necessary in order to pass title as between the plaintiff and them. The first three assignments are without merit, and are not sustained. As to the fourth and fifth assignments, it is only necessary to say that no question involving the distinction between absolute and qualified property was raised by any aspect of the testimony. The plaintiff claimed title to the goods in suit as owner, and the defendants claimed that they were the owners. The Court repeatedly told the j ury that the plaintiff; could recover upon either a general or special property, and a right to the possession of the goods at the time the writ was issued, and this was not contradicted by the affirmance of the defendants’ first point. It is not easy to see that there was any occasion for the point, as the plaintiff claimed title as sole owner, and there was no evidence showing that he held title jointly with others. The point, therefore, was entirely harmless, and, as it related only to the number and connection of owners, and not to the character or quality of the title, the answer did not conflict with the general charge, and the point itself was of no consequence in the case. •

“ The offer of contradiction covered by the sixth assignment was too large. It was competent to contradict the witness, C. E. Stewart, by showing that he had not called upon his counsel, Mr. Lazear, for the opportunity to correct his testimony in the former case, because he had testified that he had done so on cross-examination. But that was the whole of his testimony on that subject. In point of fact, this contradiction was offered and given in evidence immediately before the enlarged offer was made. This offer, however, went far beyond the subject of the contradiction. It proposed to give in evidence privileged communications between client and counsel made prior to the time of the testimony in the former case, and as to which the client had given no testimony and had not been interrogated. It cannot be said, with any fairness, that the client had waived his privilege as to any such communications, and the offer to give them in evidence was, therefore, properly rejected!”

Judgment affirmed.