Jackson v. Litch

The opinion of the court was delivered,

by Sharswood, J.

The first assignment of error is that the court permitted two witnesses, called by the defendants below, who are the plaintiffs in error, to prove that they respectively had authority from the plaintiff to receive certain sums of money for* which they had given receipts, to be asked in cross-examination what the money was received for. It is certainly well settled in this state that cross-examination must be confined to the matters which have been stated in the examination in chief. A party will not be permitted to lead out new matter, constituting his own case, by the cross-examination of his adversary’s witnesses: Ellmaker v. Buckley, 16 S. & R. 72; Floyd v. Bovard, 6 W. & S. 75; Mitchell v. Welch, 5 Harris 339; Turner v. Reynolds, 11 Harris 199. Yet I have not been able to find a single case in which this court has reversed on that ground. It has generally been considered as a matter within the sound discretion of the court below, and in Schnable v. Doughty, 3 Barr 392, though the Supreme Court thought that the rule had been violated they distinctly refused to reverse. In Helser v. McGrath, 2 P. F. Smith 531, the present Chief Justice remarked, “ These rules, as well as all others on the order of examination of witnesses and the introduction of testimony, have for their object the eliciting of truth and the preservation of the equality of the rights of parties in trials in courts. Much, however, must still be left to the discretion .of the judge. Neither the rule nor the exception must be allowed, if it can be prevented, unduly to prejudice the parties. The exercise of a prudent discretion by the judge is the only guard against this in many cases. Although we will not reverse in ¿his case for an excess of latitude in the cross-examination, because we do not discover the injury from it, yet we think it was very great and beyond the limits of the authorities generally. Doubtless the learned judge thought he saw the propriety of allowing it and, we cannot say he was wrong, for we have not his means of judging.” It may be concluded from these authorities that in order to reverse, it must be an extreme case, in which discretion has been abused and in which it is apparent that the party has been injured. This ease is certainly not of that character. The question propounded to the witness was indeed within the latitude heretofore conceded; for where a witness has stated a fact, he may be ashed by the other party to detail all the circumstances within his knowledge which qualify it, even though they may constitute new matter and form part of his own case. This the authorities clearly establish: Perit v. Cohen, 4 Whart. 81; Markley v. Swartzlander, 8 W. & S. 172. “A party,” says C. J. Gibson, “is entitled to bring out every circumstance relating to a fact which an adverse witness is called to prove:” Bank v. Fordyce, 9 Barr 277.

The second error assigned was in permitting a witness, who drew the agreement for both parties, to prove that part of the consideration stipulated to be paid, was for certain landing and other privileges, and the balance for repairing the dam. It is argued that this evidence contradicted or varied the terms of the writing, but clearly this was not so. It was a fact entirely outside of the paper. The articles provided that certain instalments should be paid at fixed periods, “ and $1250 as the work progresses on the dam.” The allegation of the plaintiff below was that by a subsequent verbal agreement the repairing of the dam was abandoned and a new dam agreed to be built under a new arrangement, by which each party was to pay half the cost. It was not then contradictory to the agreement, but consistent with it to prove that the $1250 to be paid as the work progressed on the dam was the agreed consideration for that part of the plaintiff’s undertaking.

The third assignment of error is to the answer of the court to the fourth point of the defendants below, in which the jury were instructed that “ if there was a simple contract resting in parol by which the defendants agreed to pay half the expense of erecting this dam, it is not within the Statute of Frauds and Perjuries.” So far as the defendants had an incorporeal right of easement, it was secured to them by the written agreement. The contract sued upon was to substitute a new dam for the old one which the plaintiff had agreed to repair. In Le Fevre v. Le Fevre, 4 S. & R. 241, it was expressly held that parol evidence is admissible to prove that after the execution of a deed conveying a right to a watercourse through the granted land by courses and distances, a verbal agreement was entered into between the parties for their mutual accommodation, altering the route of the watercourse, provided the agreement has been carried into effect. In the case before us the agreement was carried into effect by building the new dam. The authority is therefore in point.

The fourth error assigned is to.the answer of the court to the defendants’ fifth point. This point was substantially affirmed. It was based upon the assumption that both the written .agreement to repair the old dam and the verbal agreement to build a new one were binding, and asked the court to charge that defendants would have a right to set off whatever amount it would cost to repair the old dam. The court said that they would have a right to set off for all the damages they had sustained if any. The plaintiff might have reason to complain of this instruction, but surely not the defendants. If the new contract was proved to the satisfaction of the jury and was binding, it was a substitution of a new for the old dam, and there was no right to any set-off for not repairing the old dam.

No injury was done to the plaintiffs in error by the refusal of the court to answer their sixth point. It ignored all the evidence in the case from which the jury would have had a right to infer that the agreement of August 10th 1864 was a new arrangement between the parties substituted for and designed to take the place of the original agreement of January 25th 1856, if indeed on the construction of the papers themselves, such was not their legal effect.

Judgment affirmed.