Miner v. Phillips

Mr. Chief Justice Walker delivered the opinion of the Court: The grounds relied upon for a reversal in this case are, the admission of improper, and the rejection of proper, evidence ; that the finding of the jury is not sustained by the testimony; and overruling the motion for a new trial. This was the third trial in the court below, the first of which resulted in favor t appellant and the other two in favor of appellee. The transcript fails to show that it contains all of the evidence on the trial in the coiu’t below. The practice is long and well settled in this court, that, where a bill of exceptions fails to show that it contains all the evidence in the case, this court will not examine whether the evidence it does contain supports the verdict. It is for the reason, the presumption will be indulged, that there was other proof, and that it was sufficient to sustain the finding. On error, it is for the plaintiff to overcome the presumption that the judgment of the court below is correct. He must show error that vitiates the judgment, or he must fail. We cannot, for the same reason, review the decision of the court refusing to grant a new trial. The judge who tried the case, having heard all of the evidence, is presumed to have decided the motion in view of all the proof adduced on the trial, and it must be presumed that his decision is correct, until error is shown. The bill of exceptions not stating that it contains all of the evidence, we cannot disturb the verdict on the evidence it does contain, even if it was insufficient. Mor can we perceive any error in giving the instructions. They should always be given in reference to the evidence in the case. On one state of facts as disclosed by the testimony, an instruction would be strictly proper, while on another state of facts it would be improper, as calculated to mislead the jury. It is, therefore, unnecessary to consider the instructions unless we had all the evidence before us upon which they were based. We cannot perceive from this record that the court below erred in overruling the motion for a new trial. The declarations of Horwitz, made after the sale, were properly excluded. It has been repeatedly determined by this court, and in accordance with the well established rules of evidence, that the declarations or admissions of the vendor, after he has sold the property, cannot be received to defeat the vendee’s title. And it is for the obvious reason that there is then no privity existing as to the parties or the title. His declarations, made after the sale, in reference to the property or the sale, are no more binding upon the vendee than are those of any stranger to the transaction. - After the sale was consummated, the vendor became a stranger to the title for all purposes, and his statements then made, in reference to the intentions of the parties in making the sale, are not evidence against the vendee, and the court below did right in excluding them from the jury. The record in this case fails to show, that the proper foundation was laid to impeach John Horwitz, by contradicting his evidence. The question propounded to him was, whether he told Heilman that he had sold out to avoid trouble with his creditors. There was neither time nor place named, or any other circumstance referred to, calculated to direct the attention of the witness to the conversation about which the inquiry is made. Until this was done, the law will not permit a witness to be contradicted. This would be permitting a witness to be entrapped,, when the law requires that he should be treated fairly. If, after his attention has been particularly called to the conversation, in which the statement is supposed to have been made, and the witness denies making the statement, then he may be contradicted. This was not done, and the court decided correctly in not permitting Heilman to answer the question. It is urged that the court helow permitted Horwitz to answer, that the sale was made in good faith, without stating the particular terms of the sale. Ho objection is perceived to the question or the answer. If desired, the opposite party had the right, on cross-examination, to ascertain all the particulars of the transaction, and thus show, if he could, that the sale was fraudulent. This is the usual practice, and we cannot perceive that it can work any hardship. It is generally recognized as correct practice to ask general questions of this character, leaving the other side to call for details and the collateral circumstances of the transaction. There was no exception taken to what the witness said in reference to the notice published in the newspaper. That being the case, error cannot be assigned on the admission of that evidence. But, it seems, the witness only referred to the fact of seeing the notice, for the purpose of fixing a date. He was asked if he knew of Phillips being engaged in business, and the length of time. In answering the question, to fix the period and to refresh his memory, he referred to the notice in the newspaper. The answer does not seem to contain any thing prejudicial to the opposite party. The witness had the right to refresh his memory by referring to -this or any other paper, and he did so in this case to ascertain the length of time Phillips had been in business. There was no error in permitting the witness to answer the question in the manner he did. The fact, that other creditors had sued out attachments, is not evidence of fraud. To so hold, would enable creditors, in any case, to defeat the fairest transaction, and a sale made in the utmost good faith. It would only be necessary for one creditor to sue out an attachment, and for other creditors to prove that fact, to establish a fraud that would impeach the fairest sale that could be made. This is not the law. It is impossible, that strangers to the transaction can do any act that can in the least affect the purchaser’s rights after he has bona, fide acquired title to the property. Inasmuch as such proof is inadmissible to prove fraud, it makes'no difference-whether the offer was made to prove it by oral or record evidence, as in either case it should be rejected. The mode of proof could not affect the right. We are unable to perceive any error in this case requiring the reversal of the judgment of the court below, and it must therefore be affirmed. Judgment affirmed.