DocketNumber: No. 13213
Citation Numbers: 90 Wash. 595, 156 P. 531
Judges: Chadwick, Ellis, Fullerton, Morris, Mount
Filed Date: 4/8/1916
Status: Precedential
Modified Date: 10/19/2024
Action by the principals to recover damages for fraud claimed to have been practiced by their agent in a sale of real estate. The first trial resulted in a verdict and judgment for plaintiffs. Upon appeal, that judgment was reversed on the ground that an erroneous measure of damages had been applied, and the cause was remanded for a new trial. Scribner v. Palmer, 81 Wash. 470, 142 Pac. 1166. After the first trial, Charles M. Scribner died. His wife, Dorcas Scribner, as executrix of his will, was substituted as plaintiff. The second trial also resulted in a verdict and judgment for plaintiffs. Defendant again appeals. The facts touching this controversy are stated in full in our former opinion. That statement is adopted as the statement here.
1. It is contended that the court erred in admitting evidence as to the character and value of the Oklahoma land, over appellant’s objection to its relevancy and materiality. This claim is based upon the now admittedly mistaken assertion that “the Oklahoma land was not, nor any interest therein, transferred to the Scribners.” The land was conveyed by Hodge to the Scribners and the deed delivered at the same
II. Charles M. Scribner testified at the first trial. He was submitted to a rigorous cross-examination in which were elicited certain matters of which parol testimony was not the best evidence and certain hearsay statements as to Ball’s financial condition. He having died before the second trial, the stenographic report of his testimony, both on direct and cross-examination as given at the first trial, was read in evidence at the instance of respondents, pursuant to Rem. & Bal. Code, § 1247 (P. C. 81 § 1127). Upon the overruling of appellant’s objections to the above mentioned matters, on the
“The testimony of any witness, deceased, . . . given . in a former trial of the same cause . , . when reported by a stenographer . . . and certified by the trial judge, . . . may be given in evidence in the trial of any civil action . . . where it is between the same parties and relates to the same matter.”
It is the testimony of the deceased witness given in a former trial, not some part of it, which is, in plain and positive terms, made admissible at the second trial. The statute leaves no room for construction.
It may be that such evidence would be subject to any objection which was made and improperly overruled on the first trial in favor of the same party making the same objection at the second trial. It might, with reason, be argued that such evidence, when originally admitted over a proper objection, became no valid part of the testimony at the first trial. On that point, we hazard no opinion. Such is not the case here. The evidence here objected to was not subject to the objections now made on appellant’s part when it was admitted at the first trial. Its character as proper and binding cross-examination was not changed to improper direct examination, subject to a motion to strike, by being offered as a part of the testimony of the deceased on the second trial.
The question being one of first impression, and no decision of any court directly applicable having been cited, we have felt impelled to state thus fully our reasons for holding the evidence of the deceased witness admissible in its entirety.
in. The court permitted the reading of a deposition of the recorder of deeds of Jackson county, Oklahoma, into which the witness had read from the record in his office the mortgage on the Oklahoma land referred to in the Ball contract and in that contract assumed by Ball as a part of the purchase price. This was objected to on the grounds that it
IV. Counsel vehemently protests against the action of the trial court in permitting a cross-examination of appellant as to his motive in writing a letter to Scribner inclosing certain shares of stock. The letter is set out in full in our former opinion. The objection is based upon the ground that appellant was not questioned as to this letter in his direct examination. This is true; but, in direct examination, he had denied that he had anything to do with closing the deal between Hodge and the Scribners further than to bring them together. He had said, in substance, that he did nothing to influence the deal. As stated in our former opinion, the letter was properly admitted as showing the intimate relation of the parties. The cross-examination as to his motive in writing it was clearly permissible as testing the truth of his claim that he was in no wise instrumental in inducing respondents to make the deal.
V. It is likewise claimed that the court erred in permitting cross-examination of the appellant as to his attempts after the closing of the deal with the Scribners to sell the Scribner
VI. Finally it is argued at great length that the court erred in overruling the motions for a nonsuit and for judgment non obstante veredicto. These motions were based upon the claim that the respondents’ evidence was insufficient to take the case to the jury upon the primary issue of fraud. The respondents’ evidence touching that issue was in all material particulars the same on the second trial as on the first. The same contention was made touching the sufficiency of the same evidence on the first appeal as now. We then held that “the court did not err in overruling the motion for a nonsuit and in refusing to direct a verdict.” As to the sufficiency of the evidence to make a case for the jury, our decision on the first appeal settled the law of the case. Perrault v. Emporium Dept. Store Co., 83 Wash. 578, 145 Pac. 438, and cases there cited; Smith Sand, & Gravel Co. v. Corbin, 89 Wash. 43, 154 Pac. 150; Hoffman v. Watkins, 89 Wash. 661, 155 Pac. 159.
The judgment is affirmed.