Myre v. Ludwig

The opinion of the court was delivered by Rogers, J. This was an action on the case for not delivering goods according to consignment. On the trial, the defendant offered in evidence the deposition of Peter Sherman, a wagoner in the employment of the defendant, to whose custody the goods were intrusted, and by whose default, if any, they were not delivered according to order. The plaintiff objected to reading the deposition, because the witness was interested. Whereupon the defendant executed a release; and whether the release was delivered was the question. On that depended the competency of the testimony. The facts were these: Ludwig, the defendant, executed a release which purports to be signed and delivered in the presence of Samuel De Puy and Charles Davis. It was signed but not delivered in their presence; but the release was forwarded to Simon Gebhart, Esq., in Somerset county, who acted as the attorney of the defendant. It appears from the certificate of the justice, which is evidence for that purpose, that the deposition was taken in the presence of T. M. Kimmel, attorney for plaintiff, and of Mr. Gebhart. It also appears on the face of the deposition, that the release was in the hands of Sherman, and that he desired it should be filed of record. All this is done in the presence of the plaintiff’s attorney, who makes no objection, but allows the witness to be examined, and who cross-examines him. It is too late to insist upon more formal proof at the trial. A witness cannot remove by his own oath a well-founded objection to his competency; therefore, any acknowledgment of his, on his oath, that the release was delivered, goes for nothing. It must be proved by independent testimony. But notwithstanding this, we think sufficient appears to justify the court in receiving the deposition. On suit brought by the defendant against the witness, the facts, which now appear, would bar the action. We put the case on the presence of plaintiff’s attorney when the deposition was taken, making no objection on account of the nondelivery of the release. It would take the defendant by surprise to rule the deposition out at the trial, on an objection which might have been made, and if made, removed, when the deposition was taken before the justice. It is said, the court erred in admitting the evidence mentioned in the second bill. The action was brought, as has been before said, for not delivering goods according to consignment. The defence is, that the goods were [53] delivered according to order. Peten Sherman proved that he was the carter of Ludwig; that he got a loading of Myre, who was the owner; and that he asked Myre for an invoice, but none was given to him. That Myre told him to take the load, which consisted of wadding, to Reppliers, of Philadelphia, corner of Race and Third streets; that he called on Reppliers and asked them if they had a load of wadding, twelve bales, to receive from Myre. Repplier told him he had, and that he had been looking for it a week ago. He further staled that he knew nothing of the dealing of Myre with Repplier until after the wagon was unloaded. To corroborate the testimony of Sherman, the court permitted the defendant (contrary to the objection of the plaintiff, and which forms the subject matter of the second bill) to prove by Charles Repplier, as follows: That this receipt, viz., a receipt for the goods delivered by the carter, was signed by himself as one of the firm of C. & J. Repplier. Twelve bales of wadding were delivered to us, on the 21st Nov., 1836. After the wadding was delivered, he gave the receipt to the carter. Previous to that, Myre became indebted to us, and on the 21st Nov., 1836, was indebted $283 31 cents, with interest from January 1, 1835. For this amount we frequently asked Mr. Myre.- It was about six months before Nov., 1836, he met Myre in Philadelphia.; told him theymust sue him unless he paid the debt. He then promised to send us wadding for the amount due, and on the 21st Nov., 1836, this wadding was brought to our place of business by Peter Sherman. If this testimony be true, it adds force to the evidence of Sherman, who testifies that Myre ordered him to deliver the wadding to Reppliers; that he obeyed the order of the owner of the goods as he was bound to do. It also gives plausibility to Sherman’s account of the transaction, because, what so probable as that Myre should order goods to a man in payment of a just debt, and to whom he solemnly promised to send them. And what adds considerably to the strength of the testimony is, that there is no proof of collusion between Sherman and Repplier, with whom it seems he had no acquaintance, or any knowledge of any dealings between them. It was also evidence of the delivery of the goods, and negatives any idea that they were secreted either by the defendant or his agent. ' It is undoubtedly a rule of law, that you cannot give evidence of the good character of a witness until it is previously impeached; but this rule does not extend so far as to exclude evidence corroborative of the testimony of your principal witnesses. You have the right, subject to the control of the court, to prove circumstances which fortify and add [54] probability or certainty to the truth of their testimony. There is no rule of law which has come under my observation, which prevents a party from giving additional, confirmatory, cumulative and corroborative evidence of facts previously proved, or which tends to strengthen, add force or probability to such evidence. Such testimony, however, is subject to the control of the court, who may doubtless interfere to prevent delay or unnecessary waste of time. Judgment affirmed.