Stewart v. Kindel

Mr. Justice IIayt delivered the opinion of the court. The first four assignments of error, so far as they are urged in this court, relate to the admission of certain evidence.upon the trial against the appellant’s objections. The testimony thus admitted relates to certain conversations which took place between the parties upon March 24, 1887. A written contract having been subsequently entered into by the parties, it is contended that oral evidence of the prior negotiations was not proper for the consideration of the jury. "We do not think this objection well taken. The money sought to be recovered was paid to the defendant by 1 a check upon a certain Denver bank. Had the giving of this check been a part of the agreement evidenced by the written contract, there would be some basis for defendant’s objection; but whether or not it was intended as a part of that transaction was the vital point in issue between the parties upon which the jury were called upon to pass. The [541] evidence tended to show that the payment was no part of the transaction evidenced by the writings; that it was wholly without consideration, and resulted from a mutual mistake. Under these circumstances the testimony was competent. The appellant, a witness in his own behalf, in the court below, was required, against objection, upon cross-examination, to answer certain questions tending to show the existence of an unfriendly feeling between the parties, and this is assigned for error. It is one of the objects of cross-examination to show the relation existing between the witness and the party against whom, as well as the party for whom, he is called. And it can make no difference if the witness himself happens to be a party; anything tending to show either bias or prejudice, or to throw light upon the motives and inclinations of the witness, may be permitted, in order that the jury may be assisted in determining the weight that should be given the testimony of the witness. No doubt the extent of the inquiry rests somewhat in the discretion of the trial court. An investigation into particulars beyond what appears to be necessary to ascertain the nature and -extent of the hostile feeling should not, of course, be permitted. In this case counsel were allowed to go to some extent into the details and particulars of such ill will, and, we think, rightfully so. The fact that the witnesadmitted the existence of ill feeling or prejudice against the plaintiff did not preclude an inquiry into the extent or intensity of such ill feeling, nor a cross-examination as to the character and degree of such prejudice. State v. Collins, 3Kan. 77; State v. Dee, 14 Minn. 35 (Gil. 27); Batdorff v. Bank, 61 Pa. St. 179; McFarlin v. State, 41 Tex. 23; Thomp. Trials, §§ 450, 451. In State v. Dee, supra, it is said: “ The object of this kind of testimony is to show bias and prejudice on the part of the witness, for the purpose of leading the jury to scrutinize, and perhaps to discredit, the testimony. If testimony of this character is to be received, it should be [542] received in its m,ost effective form, so that the purposes for which it is introduced may be best accomplished. A mere vague and general statement that hostile feeling existed would possess little force. It certainly must be proper to ask what the expression of hostility was, for the purpose of informing the jury of the extent and nature of the hostile feeling, so that they may determine how much allowance is to be made for it.” Several errors are assigned upon the instructions given by the court. By the first instruction the jury were told, in substance, that if they believed from the evidence that the payment was made when nothing was owing under the contract between the parties, and that it was made because Kindel did not, by reason of excitement or forgetfulness, appreciate the terms of the contract, then he was entitled to recover. This instruction is criticised by appellant because it leaves out, as it is said, the necessity of showing that the mistake was mutual. If considered by itself it is possible the jury may have drawn such conclusion, although, if the amount was paid by the mistake of appellee and received by appellant when nothing was owing, it would seem to follow as a logical sequence that it must have also been received as well as paid by mistake; otherwise, appellant was guilty of fraud in receiving that to which he had no claim. We are not compelled to rely upon this, however, as in the instruction immediately following, as well as in other portions of the charge, the jury are told that to warrant a recovery the money must have been received as well as paid by mistake; i. e., to warrant a recovery the mistake must have been mutual. Under the circumstances we do not think it possible for the jury to have been misled as to the law upon this point. In construing a charge to a jury each instruction should be considered in connection with the entire charge, and if, considering the instructions as a whole, it appears that the jury were correctly advised by the court upon all material points in the cause, this is sufficient. McClelland v. Burns, [543] 5 Colo. 390; Thatcher v. Rockwell, 4 Colo. 375; Dozenback v. Raymer, 13 Colo. 451. Upon the trial the parties to the action were each sworn and testified, as did also one of the attorneys of record in the case. In reference to such testimony the jury were told that in weighing the testimony of such witnesses they were at liberty to take into consideration the interests of each in the result of the action, so far' as- such interest was disclosed by the evidence. There was no error in this. The degree of credit to be given to each and all witnesses is a question exclusively for the jury; and if an attorney of record in a cause goes upon the stand as a witness, his testimony is to be weighed by the jury in view of all the surrounding circumstances appearing on the trial, including his professional connection with the case. There is some conflict in the testimony in this case, but it was the péculiar province of the jury to decide upon which side lay the preponderance of the evidence. The verdict was against appellant. The cause appears to have been fairly submitted to the jury under proper instructions, and the verdict cannot be disturbed. The judgment is accordingly affirmed. Affirmed.