Foster v. Worthing

C. Allen, J. The principal question was, whether, as between the plaintiff and the defendant, it was the plaintiff’s duty to provide for the payment of the notes in suit. The defendant contended that it was, and introduced in evidence the deposition of Irvine, tending to prove that it was so understood at the time the notes were made. As tending to contradict Irvine, the plaintiff was then allowed to introduce a letter written by Irvine to the plaintiff, shortly before the notes became due. The defendant now contends that this letter did not contradict Irvine, but was consistent with his testimony. It is not necessary, in order to make the letter competent, that there should be a contradiction in plain terms. It is enough if the letter, taken as a whole, either by what it says or by w'hat it omits to say, affords some presumption that the fact was different from his testimony. And in determining this question, much must be left to the discretion of the presiding judge. Declarations or acts, or omissions to speak or to act when it would have been natural to do so if the fact were as testified to, may be shown by way of contradiction or impeachment of the testimony of a witness, when they fairly tend to control or qualify his testimony. Clement v. Kimball, 98 Mass. 535. Brigham v. Clark, 100 Mass. 430. Snow v. Moore, 107 Mass. 512. Hook v. George, 108 Mass. 324. Hayden v. Stone, 112 Mass. 346. Perry v. Breed, 117 Mass. 155, 165. Brigham v. Fayerweather, 140 Mass. 411, 416. The letter of Irvine in the present case falls within this rule. It related directly to the subject of making payment of the first note, and it bore upon the probability of Irvine’s testimony. It was, of course, open to explanation, and its weight is not for us to consider ; but it was competent. Exceptions overruled.