Morgan v. Browne

The opinion of the court was delivered, by Sharswood, J. The testimony offered by defendants below— the rejection of which is complained of in the 1st assignment of errors, was clearly incompetent. The witness was asked what were his rights under a lease which was in writing and in evidence. It is very manifest, that any answer could only have been the opinion of the witness, and inadmissible. •The second assignment complains of the exclusion of an offer by the defendants below, to prove the terms agreed upon by Peter A. Browne and A. V. Cooke, as to the occupancy by Cooke of the twenty-two feet passage-way on the east side of the mill rented by Cooke from the plaintiff. The lease by the plaintiff to A. D. Cooke, was in writing and in evidence, and it was not proved, or offered to be proved that Peter A. Browne had any authority to agree upon any other or different terms. The learned judge was, therefore, clearly right in overruling this offer. The third assignment is the exclusion of the testimony of Edwin L. Morgan, one of the defendants. When this witness was pro [136] duced, the plaintiff’s counsel required, as he had a right to do, that the counsel for the defendants should state what he proposed to prove by him. The answer was, that he offered to prove the facts and matter set out in the notice of special matter as given to the counsel for the plaintiff. This notice was produced, and stated on its face that “ the facts the evidence will be offered to prove, are more fully set out in the copy of the affidavit of defence hereto annexed.” Copies of two affidavits are attached. The plaintiff then objected to this statement, and required the defendants to state which of the matters and things contained they intended to prove by this witness. To this call there was no response, and the learned judge thereupon rejected the offer. It is well established that, when a witness is offered, the counsel of the party producing him may be called on to state what he proposes to prove by him, in order that if the facts are irrelevant, they may be excluded: Small v. Jones, 6 W. & S. 122; McClelland v. Lindsay, 1 W.& S. 362; Milliken v. Barr, 7 Barr 23. It is an evasion of this rule, for a party when thus called on, to refer to the affidavit or affidavits filed in the ease. If they are read, and their pertinency discussed in open court, it brings before the jury the sworn ex parte statement of the defendant without the opportunity of cross-examination. Such a practice is altogether irregular, and the learned judge below committed no error, especially when the defendants, though called on, did not state which of the matters and things contained in the affidavits they intended to prove by the witness. The fourth assignment of error is to the admission of a lease made by the defendants, offered by the plaintiff in rebuttal. It is contended that there was nothing in evidence which it was relevant to rebut. But this is a mistake. The deposition of Albert D. Cooke was in evidence on the part of the defendant, and the lease in question tended directly to show, that before the lease by the plaintiff to Cooke, and before the time when the plaintiff, as alleged by the defendants, was bound to remove the small building occupied by Thomas Schofield, in order to make a clear passage-way of twenty-two feet, the defendants by the lease to Langenbach, Preusch & Hauck, had debarred themselves from the use of the passage-way, and had sustained, therefore, no damage by the non-removal of the small building by the plaintiff. The letter of defendants of November 16th 1869, to the plaintiff, the admission of which is complained of in the fifth specification of error, was also clearly admissible. It showed that the defendants then set up as a reason for non-payment of rent, not the breach of covenant as now alleged, but entirely different matters. Judgment affirmed.