Moline Wagon Co. v. Preston & Co.

Gary, P. J. Both these parties are corporations, and the question between them on the trial in the Circuit Court was whether certain negotiable paper bought by the appellants from the appellees was so bought with the privilege of return. Mr. Whittle, the business manager of the appellees, having testified on their behalf that no such privilege was in the bargain, was asked on cross-examination by the appellants, “ Are you indebted to Preston & Co.? ” and on objection by the appellees, counsel for. appellants stated that they desired to show that the witness was so indebted for a large amount of money, or indebtedness which was not incurred by consent of the appellees. The objection was sustained and the appellants excepted. The rule that on cross-examination a witness may be asked any question tending to impeach his impartiality, is universally recognized by the text books, and the only doubt is as to when his answer may be contradicted by other testimony. Phenix v. Castner, 108 Ill. 207; 2 Ph. Ev. C. & H. 905; 2 Tay. Ev. Sec. 1442. And the witness will not be excused from answering unless he claims his privilege on the ground that he will, by answering, expose himself to punishment. The privilege is his, and not that of the party. 1 Greenl. on Ev. Sec. 451; and mere disgrace without danger of punishment, is not enough to ground it upon. Ibid, and Sec. 454. The question objected to did not carry with it any necessary implication of crime committed, or even of acts disgraceful. An indebtedness without the consent of the appellees may have accrued through some error of judgment, or lack of vigilance in the conduct of their business, for the results of which he was pecuniarily responsible, or under a guaranty of the fidelity of another. As the question was relevant to the cause on trial, as tending to show whether the witness was under peculiar obligations to the party calling him (2 Tay. Ev. 1231-3), it was removed from the class of cases in which it is held to be discretionary with the trial judge whether he will allow questions to a witness which charge him with misconduct in matters wholly unconnected with the pending cause. If the bargain was as the witnesses for the appellants said, that the paper might be returned “ at any time,” there was no room for the inquiry as to what would have been a reasonable time, and all competent testimony offered tending to inform the jury whether that was the bargain, should have been admitted. If, as argued, the appellants might have proved the same matter by other witnesses, that does not cure the error. Mackin v. Blythe, 35 Ill. App. 216. The exclusion was error and the j udgment must be reversed and the cause remanded. Reversed and remanded.