Rinesmith v. Peoples' Freight Railway Co.

Mr. Justice Sterrett delivered the opinion of the court, One of the main grounds of defence in the court below was that the subscription in suit was made not only on the written condition annexed thereto, but also upon the further express verbal conditions that the defendant should not be required to pay his subscription unless $100,000 of stock was subscribed in the county, and tha-t he should retain the subscription, or the book containing it, until that amount was actually subscribed. The evidence was clear that the written condition had been fully complied with, but the testimony as to the alleged verbal condition was directly conflicting. The defendant testified, without objection, to matters of inducement to his subscription, including the terms proposed by Dr. Milliken to Sheibley and himself, which, he alleges, were shortly afterwards accepted by him; that while he subscribed expressly on the conditions above stated, they had not been performed; that subscriptions to the amount named had never been obtained, and that he was not permitted to retain the subscription-book, as had been agreed upon. On the other hand, Dr. Milliken, on behalf of the company, testified that no such verbal conditions were attached to the subscription, and denied he had ever said to Sheibley and defendant that the subscriptions would not be binding until the sum of $100,000 was obtained, nor that the defendant should retain the book until that amount was subscribed. Sheibley was then called, for the purpose of proving that these declarations [264] had been made by Dr. Milliken, while soliciting subscriptions from defendant and himself, but the court rejected the offer. The learned judge, in submitting to the jury the testimony as to the alleged verbal conditions or agreement, remarked that there was a direct conflict on this subject between the two witnesses; that it was impossible that both could be correct, and that it was their duty to “look into the testimony and see whether there is any evidence, or circumstances, or facts which corroborate one or the other, and if there is, then the witness who stands corroborated should be believed.” It is thus quite apparent that any testimony tending to corroborate the, defendant, on this branch of his case, was all important ; and we think the court erred in excluding from the consideration of the jury the testimony referred to in the fifth assignment of error. While it did not relate to anything that occurred on the day the subscription was made, it would'have tended to show that the very terms and conditions on which defendant alleged he did subscribe were previously proposed to him by Dr. Milliken. If this were so, it would strengthen the probability of a renewal and' acceptance of the proposition at the time the subscription was made. The facts and circumstances proposed to be proved were sufficiently near, in point of time, and not too remotely connected with the fact of subscription, to be regarded as part of the res gestee, tending to shed light on the transaction. It is impossible to say what weight the jury would have attached to the testimony of Sheibley; but, whether much or little, we think, as the case stood, the defendant was entitled to the benefit of it. Its tendency, doubtless, would have been to corroborate him, and at the same time weaken the force of Dr. Milliken’s testimony, by whom alone he was contradicted. We deem it unnecessary to notice the other assignments of error, further than to say that they are not sustained. Judgment reversed, and a venire facias de novo awarded.