Torrey v. Nixon

Lyon, J. Due proof having been made of the loss of the lease which the plaintiff Torrey procured to be drawn, and which he and Paddock signed, and the plaintiffs having failed to produce it on notice, we cannot doubt that the defendant should have been permitted to prove its contents. Torrey testified that the plaintiffs leased the farm to the defendant, and not to Paddock; and it is manifest that if the instrument was what the defendant claimed and offered to prove it to he, it would go far to impeach the accuracy of Torrey’s testimony, and to sustain that of the defendant, who testified that the agreement to lease the farm was with Paddock and not with him. Discussion of so plain a proposition is useless. The offered testimony was relevant to the issue, and the court should have permitted it to go to the jury. The rejection of it was not a mere technical or immaterial error, but one which may have prejudiced the defendant. The judgment of the circuit court must be reversed, and the cause remanded for a new trial. ByaN, G. J. Upon the argument of this appeal, my attention was first called to Finch v. Phillips, 41 Wis., 387, cited by the respondent, in which it appears to be held that, though it was error to allow a party to give in evidence in chief his own letter, relating to the transaction out of which the action arose, yet, as it was only cumulative to his testimony, it was not ground for reversal. Hazelton v. Bank, 32 Wis., 34, and Schaser v. State, 36 id., 429, are referred to in support of the position. I cannot think that either of the cases supports, it, though there is a loose dictum in the latter which seems to countenance it. And it is in direct conflict with Sorenson v. Dundas, 42 Wis., 642. Finch v. Phillips was decided during my absence from the' court. The judgment was reversed upon another ground, and the position stated seems to have been immaterial to the decision. It therefore has not the weight of authority. And,. [146] with great deference, I must take leave to enter my dissent from the position. Parties cannot'manufacture evidence for themselves, either primary or cumulative, by statements, verbal or written, subsequent to the transaction to which they relate. Such statements are very generally cumulative to other evidence. When parties are witnesses themselves, they are almost necessarily cumulative. And it does not affect their incompetence that they are cumulative. A party cannot be permitted to strengthen his own or other testimony, by proof of his own statements made in pais, at his own pleasure, without sanction. One who has a controversy and writes letters or makes speeches about it,, must do so at his peril of their being given in evidence against him, but without hope of being able to aid his case by giving them in evidence himself. And when they go to a material point, their admission is ground of reversal, whether they be primary or cumulative. I beg leave, therefore, to say that I cannot accept the rule suggested in Finch v. Phillips as one binding on this court. By the Court. — Judgment reversed, and cause remanded for a new trial.