Davis v. Roby

Appleton, C. J. This was an action of trespass for three cows, the title to which was originally in Mrs. Sawyer, from whom the plaintiff derives his title. The defendant derives title from her (Mrs. Sawyer’s) husband by a bill of sale prior in date and in delivery to that upon which the plaintiff relies. Mr. and Mrs. Sawyer were both witnesses and testified that the bill of sale to the defendant was without the knowledge or assent of the latter. Mr. Sawyer upon cross-examination testified that the money which he received from the defendant was for a special purpose of Ms own, and that none was paid the plaintiff toward the Davis place of which the "wife had a bond for its conveyance upon certain conditions which had not been performed. The defendant offered to show that Sawyer said, shortly after the sale to the defendant, that he had paid the money raised from the sale of the cows to Mr. Roby to the plaintiff toward the amount due on the bond for a deed given by him (Davis) to Mrs. Sawyer. This evidence the court refused to receive, as it would only contradict the witness upon a collateral matter. It was immaterial what Sawyer did with the money received from the sale of the cows, if the sale was without the knowledge or consent of his wife. The offer was to show that he had given a [430] different account of the disposition of the money; — but that was entirely immaterial, unless such disposition was with her knowledge and consent; — but that was no part of his statement. The inquiry was collateral to the main question and the defendant must abide the answer. The rule is uniform that answers to inquiries on cross-examination as to collateral matters cannot be contradicted. State v. Benner, ante page 267. A witness may be impeached by showing a bias or prejudice or gross misconduct in reference to the cause in which his testimony is given. Mrs. Smith was a witness. She was impeached by proof from her own lips that she knew nothing about the case but what her husband had told her, and that he had told her the story she must tell, with a caution, that she must tell the same story twice alike or she would spoil all. The authorities all show that a witness may thus be impeached. Chapman v. Coffin, 14 Gray, 454; Day v. Stickney, 14 Allen, 255; Swett v. Shumway, 102 Mass., 365; New Portland v. Kingfield, 55 Maine, 172. Certainly a statement that she knew nothing about the case except what was told her is a contradiction of any statement as to her knowledge. The exception taken was to the interrogatory proposed. If the answer was irresponsive, or in part contained inadmissible statements, the objection should have been made thereto, at the time, so that whatever was objectionable could be stricken out. Exceptions overruled. Walton, Dickerson, Barrows, Yirqin and Peters, JJ., concurred.