Heard v. McKee

By the Court. Lumpkin, J. delivering the opinion. [l.] The first objection in this case is, to the execution of the interrogatories of Joseph A. Roberts : and this objection [342] is two-fold ; first on the ground that the cross interrogatories are not answered ; and, secondly, because they were executed in concert with plaintiff’s counsel, and upon instructions given by him. The first ground, we think is not supported by the facts. In the opinion of the Court, the two cross-questions propounded to the witness, were substantially answered. As to the second objection, it seems, that the witness was twice examined by commission in this case. And Mr. Russell, who it is alleged, was counsel for the plaintiff, furnished the witness with a copy of his answers to the first set of interrogatories. We see nothing wrong in this. The object in taking testimony is, to ascertain truth and not to entrap witnesses. ■ [2.] The next exception is, in allowing the witness Roberts to testify that plaintiff said, that Heard had not paid for the rockaway and harness. The interrogatory to which this answer was given, is not in the record. And it depends upon that, whether or not, the answer was legal; unless elicited by the question, it was not proper. It does appear from the bill of exceptions, that the witness was asked, whether or not he ever heard plaintiff say, that Heard had paid for the rockaway and harness ? In answer to this, he responded, “he neve: did,” but on the contrary, “he had heard him say, that he had not.” Suppose the question to be, “did you ever hear plaintiff admit, that defendant had paid for the rockaway and harness; state particularly all you heard him say upon the subject?” To the question thus propounded, the reply would have been legitimate, and in the absence of the interrogatory, it is right to presume in favor of the judgment of the Court, that the answer was justified by the question. And this presumption is strengthened from the fact, that the assignment of error is not made a ground in the motion for a new trial. [3.] Defendant proposed to prove by two witnesses to-wit: [343] Marchman and Hightower, that his house containing all his papers, was burnt about the time this action was brought; and this he proposed doing, by way of accounting for hid failure to produce a receipt from the plaintiff. The Court very properly rejected this testimony for the reason, that Heard did not show that he ever had a receipt. All the proof leads to the contrary conclusion. A receipt was given for the $150 paid for Heard by Hatcher & Pitts ; and that is proven by Roberts, the plaintiff’s witness, and is no where controverted. No one over saw or heard of any other receipt, so far at least as the record discloses. In the statements of the witnesses, and of Heard himself, that he had settled for the rockaway and harness, no reference was ever made to a receipt.- [•;,] As to the sayings of Heard, that he only owed a balance of forty dollars, we are clear, that this proof was properly execluded by the Court. ■ [5.] We hold the Court was right in ruling out a portion of the answers of George I. Pitts. It was hearsay evidence. [6.] The acts of Heard and of Pitts and Gullen, while acting as his agents, were properly submitted as testimony to the jury. Their declarations not connected with these acts, nor explanatory of them, should have been excluded. As to the fourth ground in the motion for a new trial, that c‘ an inadvertent error or misunderstanding occurred during the trial of the case, fatal in itself to the administration of justice in the case,” we are unable to understand it; and counsel representing our absent brother, Bigham, has failed to enlighten us, respecting it. We concur fully with the Circuit Judge, that the verdict in this case, is neither contraiy to law or evidence, but in accordance with both. The testimony of Roberts is corroborated by his acts, and the books of the plaintiff. The evidence on the other side? is vague, confused and contradictory. The witnesses have confounded the payment for the double harness, with a sup [344] posed payment for the rockaway and harness. When Hatch-er & Pitts paid to plaintiff the $150 on account of Héard, • they excused themselves for not paying the balance of the claim, not because it was already paid, but for want of funds of defendant’s in their hands. When was the $190 paid ? By whom? No witness has supplied any satisfactory proof upon this vital point. We apprehend none such exists.. Judgment affirmed.