Allen v. Seyfried

Cole, J. I. The motion to suppress the depositions was-founded principally on the objection that it appeared that the-witnesses had been allowed to take and read the direct and cross interrogatories before- they were examined by the commissioners. The witness Becker says, in answer to cross interrogatories: “ I read the direct and cross interrogatories, here,. 418 to-day, before the examination began.” The witness Glaser says: “ I read the direct and cross interrogatories, here, to-day, and several days ago.” Row, it is said that this shows such a fraudulent or improper execution of the commission as to warrant the court in suppressing the depositions. The practice of allowing a witness to read or know, previous to examination, what questions will be asked him, is doubtless liable to abuse, and may sometimes almost destroy the value of a cross examination. A hostile or dishonest witness, knowing in advance what questions were to be asked, would be put upon his guard, and might so prepare his answers as to suppress the truth, conceal his bias, or avoid self-contradiction. This is all very evident. But, still, it is absolutely necessary, in certain cases where a witness is to be examined in reference to a transaction which was the subject of correspondence, or which involved numerous items or dates, that he should be informed beforehand of the nature and scope of the questions he will be called upon to answer, in order that he may be prepared for the examination. For it is obvious that, without some previous preparation to refresh his memory in such cases, his testimony would be nearly or quite valueless. We think, therefore, to lay down a rule that it is a sufficient ground for suppressing a deposition, if it appear that the witness was allowed to read and examine the direct and cross interrogatories before he gave his evidence, would be inconvenient and dangerous as a rule of practice. On this point the court below instructed the jury, that permitting a witness to read the direct and cross interrogatories before giving his testimony tended to defeat the entire purpose of a cross examination, by enabling a witness to think out and prepare in advance his 'answers; and that a deposition taken under such circumstances was not entitled to the same weight as a deposition taken where the witness had not studied the interrogatories in advance of giving his testimony. According to this instruction, previous knowledge of the questions wThich the witness was 419 required to answer, affected the credibility of his testimony, but did not constitute a sufficient reason for suppressing it entirely. This rule we regard as the better one on the subject, and therefore think there was no error in refusing to suppress the depositions for the reasons assigned. II. Another error assigned is the refusal of the court to permit the witness Ewing to answer the questions calling for the declarations or statements of Seyfried, deceased, made at the time of the delivery of the lumber in controversy. The questions were first asked on the cross examination, but afterwards the witness was called on the part of the defendant, and the questions repeated, with the further offer to prove that Seyfried stated, at the time of the delivery of the lumber, that Mr. Wilcox claimed the title to it, and that he was satisfied the plaintiff had no title to it, and that he had paid Wilcox for it. It was insisted by the connsel for the defendant, that all that was said at the time of the sale and delivery of the lumber, was part of the res gestee, and was competent testimony. This position, we think, is correct. The action is to recover the value of a cargo of lumber alleged to have been sold and delivered by the plaintiff, through his agent, Ewing, to the deceased, Seyfried. The lumber was shipped from the plaintiff’s dock at Mnskegon, on a vessel, and transported to Milwaukee. Ewing was a lumber broker, living at Milwaukee and doing business for the plaintiff. He sold the lumber while on the vessel, to Seyfried, as the property of the plaintiff. Ewing ordered the captain to take the vessel to Seyfried’s dock, and deliver the lumber. The vessel was taken to Seyfried’s dock, and, as the lumber was about to be delivered, one Wilcox interfered and stopped the delivery. Ewing testified that he saw Wilcox, and then went to Seyfried’s yard, and told Seyfried that he must proceed with the unloading of the vessel, when Seyfried replied that he could not. And it was the declarations and statements made by Seyfried at this time which were offered in evidence and ruled out. It will be observed that 420 when these declarations were made, Seyfried was in the very act of receiving the lumber; the contract of sale and delivery was not complete. Whatever was said by the parties, at the time, was directly connected with the fact under investigation, and was admissible as a part of the res gestae. Upon this point the law is clear and well settled. Counsel, on both sides have cited many cases more or less bearing on the question; but we do not deem it necessary to go over them. For the principle is elementary, that the acts and declarations of the parties, done and made at the time of the transaction winch is being inquired into, and connected with it, constitute parts of the res gestes. There is a very exhaustive discussion of the question in Ræbke v. Andrews, 26 Wis., 313, where numerous cases are examined. See also Eastman v. Bennett, 6 id., 232; Bates v. Ableman, 13 id., 644: Wilcox v. Bates, 26 id., 465; Resch v. Senn, 28 id., 286; Milne v. Leisler, 7 H. & N., 786. What weight should be given these declarations of Seyfried as bearing upon the question of the ownership of the lumber, was a matter for the jury. But they were competent testimony, and their exclusion was error. By the Court. — The judgment of the county court is reversed, and a new trial ordered.