Stockton & Stokes v. Demuth

The opinion of the Court was delivered by Sergeant, J. Two of the bills of exception in this case are now relied upon by the plaintiffs in error. The first is to the admission by the court below of the deposition of John Walls, taken on behalf of the plaintiff below. The defendants objected to it as hearsay, being the declaration of the agent made after sending the parcel. It is well settled that the declarations made by a person’s agent, whilst acting as such, and within the scope of his authority, are evidence against the principal. Hannay v. Stewart, 6 Waits 487; Clark v. Baker, 2 Wharl. 340. Erb himself bad previously stated in his examination in court, that he was the agent of the defendants on the 29th July 1834, and continued to be so until June 1836. The declarations in question would'seem to have been made shortly after the 29th July 1834, when the entry was made in the books, and related to the business of the stage company, in which Erb was then employed as their agent. This objection, therefore, is not tenable. Another objection to the deposition was, that the declarations went to contradict the previous statement by Erb, in his examination, it seems to be a principle of law, that a party cannot discredit the testimony of his own witness, or show his ineompetency: for it would be unfair that he should have the benefit of the testimony, if favourble, and be able to reject it, if the contrary. When, however, a party is under the necessity of calling a witness for the purpose of satisfying the formal proof which the law requires, he is not precluded from calling other witnesses who may give contradictory testimony ; as in the case of Lowe v. Jolliffe, 1 Black. Rep. 365; where the subscribing witnesses to a will testified to the incapacity of the testator, yet the devisees were allowed to go intoother evidence to support it. And even where a witness by surprise gives evidence against the party who calls him, that party will not be precluded from proving his case by other witnesses: for it would be contrary to justice that the treachery of a witness should exclude a party from establishing the truth by the aid of other testimony. Accordingly, where a plaintiff had called the servant of the defendant t.o prove a warranty of a horse, on which the action was founded, and the witness denied that he warranted the horse, the plaintiff was allowed to prove the fact by means of other witnesses. 2 Camp. 556; 1 Stark. Ev. 185. According to these principles a party may resort to other evidence to prove his case, though denied by the witness first called to support it. It would seem, however, that he cannot contradict, his witness by adducing any act or declaration of the witness himself, of a contrary tenor: for when a witness, called for defendant to prove a partnership between him and the defendant, denied the fact, an answer made by the witness in chancery, in which he had stated the contrary, was [42] not admissible, because its only effect could be to impeach the credibility of the witness, though it was competent to the defendant to prove the fact of partnership by other means. Ewer v. Ambrose, 3 B. & C. 746. The deposition of Walls would not be competent for the purpose of proving by Erb’s declarations a fact which Erb in his previous testimony had denied, because it would go directly to impeach his veracity: but it would be admissible to establish a fact not stated by him. Erb, in his testimony, states that at the time of the entry in the book no package was brought to the office, and that he had no recollection of having sent it. His declarations, as contained in the deposition of Walls, are to the effect that he had sent the package, and that it had been lost. This evidence does not go to contradict what Erb had previously sworn to in his examination, or to discredit his testimony; they may be reconciled with what he had previously stated, and therefore must be considered as the proof of other facts by competent evidence, notwithstanding they consist of the act or declaration of the same witness who had been previously examined. The deposition of Walls was therefore properly received in evidence. The other error relied upon is the rejection by the court of Erb, who was offered as a witness on behalf of the defendants, and objected to by the plaintiffs as interested, because he was special bail in the suit. The defendants contend that as Erb had been produced by the plaintiff as a witness, and sworn and examined generally in the cause, the plaintiff could not afterwards question his competency; and in this we think the defendants right. By calling him up and examining him generally as his witness, the plaintiff accredited him as competent and credible, and was afterwards estopped from averring the contrary; just as a paper or deposition which the opposite party had given in evidence on a former trial, becomes evidence against him on a second trial. Maclay v. Work, 10 Serg. & Rawle 194; Stiles v. Bradford, 4 Rawle 400. The distinction is between producing and swearing the witness generally, and on his voir dire. A party to a cause sworn on his voir dire to his book of original entries, cannot be examined generally by the opposite party (without consent), but only to show it was not his book of original entries, or that the entries were not made at the lime. Shaw v. Levy, 17 Serg. & Rawle 99. But it is otherwise when he is sworn in chief; and this very point was decided in Jackson v. Varick, 7 Cowen 239, where the defendants introduced a devisee to prove the execution of a bond to which his name appeared to be signed as a witness. He was sworn generally as a witness in the cause, and denied that he ever witnessed the bond. The plaintiffs’ counsel insisted on cross examining him in support of his right, to which the defendants objected on the ground of his interest as a devisee; but it was held, that having introduced him as a witness, they could not question either his competency orcredibility. The court below therefore erred in rejecting Erb when offered by the defendants, and the judgment must be reversed. Judgment reversed, and a venire facias de novo awarded.