Brent v. Heard

ITaNdy, C. J., delivered the opinion of the court. The plaintiff below sued the defendant on a promissory note for $165, payable to the plaintiff, and made by the defendant; to which action the defendant pleaded: 1, non assimypsit; and, 2, that the consideration of the note was the purchase of a mule by the defendant from the plaintiff, delivered to the defendant; andthai it was agreed between the parties at the time of the sale and of the execution of the note, that if the defendant during the ensuing winter should purchase a certain steam-mill in the same county the plaintiff would take back the mule, and give up the note; and averring that, about the 1st of February thereafter, the defendant purchased the saw-mill, and shortly thereafter, and within a reasonable time, that he informed the plaintiff of said purchase, and desired him to take back said mule and give up the note, which plaintiff, upon said demand, agreed to do, but which he failed to do at that tíme; and subsequently, about the 1st October, 1858, he again agreed to take back the mule, but has wholly failed and refused to do so ; further averring that he has always, since the purchase of said sawmill, been ready to give up said mule. The plaintiff replied, admitting that it was agreed that, if the defendant should purchase the saw-mill as alleged, then the mule should be delivered up to the plaintiff; and that defendant informed the plaintiff of his purchase of the saw-mill, but denies that defendant ever tendered or produced the mule for delivery; and alleges that defendant received the mule at the time of sale^ and has used and worked him ever since, and now has him. The defendant rejoined, denying that he was bound to tender to the plaintiff [373] tbe mule, and averring that the contract was that the plaintiff was to take back the mule, upon the' happening of the contingency mentioned in the plea. The verdict being for the plaintiff, the defendant moved for a new trial on various grounds. The motion was overruled, and the defendant thereupon took his bill of exceptions and brings the case here. The first error insisted on is, that the court allowed the plaintiff to give evidence contradictory to the facts stated in the affidavit in behalf of the defendant, offered for a continuance of the cause; on which affidavit, the plaintiff admitted the facts contained therein, and thereupon the trial was proceeded with, and the affidavit was read in evidence to the jury. This question is argued by counsel as if the plaintiff had merely admitted the affidavit as evidence, or that the affidavit should be received as, or instead of, the testimony of the absent witness, or the like. If that had been the character of the admission, we are of opinion1 that it would have been competent to introduce testimony to contradict it. This court has never sanctioned the rule that, in civil cases, the admission of such a statement, under such circumstances, precludes the party admitting it from confronting its statements by evidence; nor do we think that such a rule would be sound. It has been held that it was not competent to do so in' criminal cases (Dominges v. The State, 7 S. & M. 475); and this rule, even in criminal cases, has since been altered by statute, so that the affidavit shall only have such effect as if made by the witness before the jury. (Rev. Code, 622, article 302.) As no similar provision is made by statute with reference to civil cases, it would appear that the legislature intended only to change the rule as held by this court; and as no such rule had been held in regard to civil cases, that it was not necessary to prescribe any rule or make any provision as to such cases. This legislative rule appears to recognize a principle which we think should be applied as well to civil as to criminal cases; and that is, when the statement is simply admitted as evidence by the adverse party, that it shall have no more effect than if [374] the same testimony had been given by the witness in person before the jury. But the admission in this case went further than this. The flcmitiff admitted the facts contained in scdd written statement, and upon that admission the defendant went to trial, and these facts were material to the issue. This was not merely an admission that the absent witness would have testified as stated in the paper if he had been in court, or that the statements of the paper should be read in evidence. It was an admission in open court, for the purposes of the trial then pending, that the facts as stated in the paper were true¡ and this clearly precluded the plaintiff from introducing testimony to show that the statements of the paper were not true. Tet such testimony was introduced, and the jury found according to it. Upon the introduction of testimony by the ¡Dlaintiff to contradict these statements, the defendant objected, but the court overruled the objection and allowed the plaintiff to introduce such testimony. This was not allowable under the broad admission of the plaintiff, and the court erred in admitting it. Several errors are assigned in relation to the instructions given by the court. These instructions have direct reference to the evidence on the part of the plaintiff, contradictory to the admission of the plaintiff; and as that testimony was -improperly admitted, it is not necessary to consider the instructions which are founded on it. The judgment must be reversed, and the cause remanded for a new trial.