Murphy v. Backer

CANTY, J. The plaintiff mortgaged certain chattels to defendant to secure a loan of money made by the latter to the former. There was a default in the mortgage. Defendant took possession of the chattels and foreclosed the mortgage on the same. This is an action of trover to recover the value of the chattels on the claim that the loan was usurious, and that therefore the mortgage was void. Plaintiif had a verdict, and from an order denying a new trial the defendant appeals. 1. It is assigned as error that the court permitted plaintiif to cross-examine defendant as to whether or not the latter had not made certain other usurious loans to other persons at other times. It is true that this cross-examination related to collateral matters, but whether or not such cross-examination should be allowed is within the discretion of the trial court, and we cannot say that in this case the court abused its discretion. 2. The court, against objection and exception, permitted Cook, one of defendant’s witnesses, to be asked on cross-examination if he had not stated to plaintiff, at a certain time and place, that he (Cook) had borrowed money of defendant at the rate of i per cent, a month interest. The witness denied having made the statement, and thereupon plaintiif was called as a witness on his own behalf, and, against objection and exception, was permitted to testify that Cook had so stated. This is assigned as error. Cook had not, in his examination-in-chief, given any testimony as to any other loan. Whether or not the court abused its discretion in permitting the question to be asked of him on cross-examination it is not necessary to decide, because, if the ruling was error, it was error without prejudice, as the witness denied having made the statement. But, conceding that the court did not abuse its discretion in allowing the question to be asked of Cook, still, the question relating to a matter wholly collateral to the issues on the trial, de [512] fendant was bound by Cook’s answer; and it was error to allow that answer to be contradicted, when the evidence given to contradict the same might prejudice the defendant. For this error the order appealed from must be reversed, and a new trial granted. So ordered.