Summary
In Johnson v. Patterson, 9 N.C. 183, Chief Justice Taylor declared that where evidence of inconsistent statements of a witness is introduced by the adverse party it is proper to permit the party who called the witness to prove other statements conforming to the testimony given on the trial; and in support of this he relied upon the authority of Gilbert.
Summary of this case from State v. GeorgeOpinion
December Term, 1822.
Where witnesses are called to prove declarations made by a witness inconsistent with what he deposes on the trial, it is perfectly regular in reply to show other declarations made by the same witness in affirmance of what he has now sworn, and that he is still consistent with himself.
TROVER, brought to recover damages for the conversion of a horse. On the trial below the plaintiff proved by one Bailey that it was agreed between the plaintiff and witness, who was on a journey to Tennessee, that a temporary exchange of horses should be made between them; that the witness should leave his horse with plaintiff and ride that of plaintiff to Tennessee and back again; and if on his return both were satisfied, to make a permanent exchange, witness to pay to plaintiff $25 as the difference of value between the horses, and if either were dissatisfied witness was to pay plaintiff $10 for the use of his horse. The witness proceeded on his journey with the horse, which is the foundation of the present action, and in Tennessee was overtaken by the defendant, who had pursued him from this State. The defendant was agent for the firm of Waugh Finley, and when he overtook witness charged him with having removed from North Carolina a person indebted to the firm of which he was agent. Witness then, on condition that defendant would permit him to go unmolested, and in satisfaction of the claim which defendant set up against him, surrendered the horse in controversy to the defendant. The defense relied on was that the exchange of horses between plaintiff and Bailey was complete, and plaintiff had no title. To prove this two witnesses, Austin and McNeilly, were introduced by defendant, who swore that in conversation with Bailey and plaintiff, both when they were apart and also in the presence of each other, they stated that an exchange had taken place between them, but said nothing of any conditions. (184) The plaintiff then called a witness, Foster, who proved that he heard plaintiff tell Bailey a few days before he started for Tennessee, and after the exchange, to take good care of the horse and not dispose of him before his return. The evidence of this witness was objected to by defendant, but received by the court. The court left it to the jury to collect from the evidence whether the exchange between Bailey and the plaintiff was permanent or made only for a special purpose. The jury found a verdict for the plaintiff. A rule for a new trial was obtained and afterwards discharged by the court, and judgment for the plaintiff. Defendant appealed to this Court.
The question in controversy between these parties was whether the horse belonged to the plaintiff or to the witness, Thomas Bailey, under whom the defendant claims, and this depended on the fact whether the plaintiff and Bailey had made an absolute or conditional sale. For the purpose of proving that the contract was of the latter description, Bailey was called on as a witness for the plaintiff. To destroy the effect of his testimony Austin and McNeilly are introduced on the other side, who testify to declarations made by Bailey, tending to show that the exchange was absolute, which declarations, if believed, go to impair the credibility of Bailey. It is, therefore, perfectly regular for the plaintiff in reply to this evidence to show other declarations made by the witness in affirmance of what he has now sworn, and that he is still consistent with himself. Gilb. Ev., 135. It is admissible in another point of view: The defendant claims under Bailey, and what he said concerning the title while he was in possession is evidence against the defendant. Guy v. Hall, 7 N.C. 150.
This case seems to have been fairly left to the jury under the charge of the court; evidence was offered on both sides, and the jury were the proper judges of it, and I cannot see any objection to the verdict they have found.
But it has been objected that the testimony of Austin ought not to have been received when he related a conversation between himself and the plaintiff, and also a conversation which had taken place at another time between himself and the witness Bailey. It must be kept in view that at the time when both these conversations took place the title to the horse was either in the plaintiff or in the witness Bailey, and that it was subsequent to that time that any claim was set up to the horse by the defendant. Under these circumstances, it was as proper that those conversations should be given in evidence, as any contract made at that time by the plaintiff and that witness. Evidence of those conversations may not be so strong to fix the title of the horse as a contract made by the parties, but it is evidence tending to the same end.
I therefore think the rule for a new trial should be discharged.
HENDERSON, J., concurred.
PER CURIAM. No error.
Cited: Hoke v. Fleming, 32 N.C. 266; Satterwhite v. Hicks, 44 N.C. 108; March v. Harrell, 46 N.C. 331; Roberts v. Roberts, 82 N.C. 31; Magee v. Blankenship, 95 N.C. 568; Davenport v. McKee. 98 N.C. 506; Burnett v. R. R., 120 N.C. 517; Cuthbertson v. Austin, 152 N.C. 338.
(186)