Turner v. McIlhaney

Burnett, J., after stating the facts in the case, delivered the opinion of the Court—Terry, C. J., concurring. It is the general rule that a witness must state facts, and not opinions, inferences, or conclusions. The exceptions to this rule are few, and relate mostly, if not entirely, to the opinion of experts in reference to questions of science and skill. This, however, was not a case of that kind. In answer to this point, the learned counsel for the defendant Hooper, insist that such testimony is admissible to prove partnership. “ A partnership,” they say, “ may be proved by common report or general reputation.” 2 Greenleaf, 483. [579] But the authority referred to does not sustain the position taken. The learned author says : “ But evidence of general reputation, or common report, of the existence of a partnership, is not admissible, except in corroboration of previous testimony; unless it be to prove the fact that the partnership, otherwise shown -to exist, was known to the plaintiff.” It will be seen that common report can only be admitted for two purposes: First, in corroboration; and, second, to show knowledge on the part of the plaintiff. But in this case, the evidence was not offered for such a purpose, nor did the evidence itself relate to common report, but to the opinion or inference of the witness himself. The question was improper at the time when put, but we think the error was cured by the testimony of the plaintiff in rebuttal, by which it was conclusively shown, by plaintiff’s own witness, that Hooper was not a partner at the time the notes were given. It has" often been held that a defect of proof may be supplied by the testimony introduced by the adverse party. The same principle will cure the error committed by the introduction of improper testimony, when the party objecting himself afterwards introduces proper evidence, clearly establishing the same fact. The true rule seems to be this : that when the jury, after excluding the improper testimony, could not have properly found a different verdict—and if they had, the Court should have granted a new trial—then the party objecting to the testimony is not injured. The next point raised by the counsel of plaintiff relates to the admission of the deposition of Thomas, one of the defendants. This deposition had been taken by the plaintiff, and by him read on a former trial of this case." At the late trial, the deposition was read by the defendant, Hooper, and objected to by the plaintiff. It was held by this Court, in the case of Gates and others v. Nash and others, April, 1856, and in the case of Lucas, Turner & Co. v. Payne & Dewey, January, 1857, that a plaintiff or defendant could not be permitted to testify on the part of his co-plaintiff, or defendant. But the counsel for the defendant insists that after a deposition of one defendant has been taken by the plaintiff, then, under the four hundred and thirty-first section of the Practice Act, a co-defendant can read a deposition as evidence on his part. That section provides that “ when a deposition has been once taken, it may be read in any stage of the saíne action or proceeding by either party, and shall then be deemed the evidence of the party reading it.” We think the intention of this section is that which its language plainly expresses. The defendant had the right to read the de [580] position. If it were otherwise, and a party should be allowed to take the deposition of any one or more of the adverse parties, and read, if it suited him—and if it did not, then to exclude it from the other side—the result would be, that a party, plaintiff or defendant, could always be fishing for evidence from adverse parties, without incurring any responsibility or danger on his part. The party who calls upon an adverse party to testify, makes him a witness. By making him a witness, he waives his incompetency to be heard for himself, or for' his co-defendant, or co-plaintiff. Judgment affirmed.