Jamison v. Gardner

42 Tex. 411

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Reeves, J.

This suit was brought by appellee to recover five hundred dollars, as the balance claimed by him on a contract with appellants for his services as a cotton-clerk for one year from the 15th day of July, 1870.

The questions in the case related to the terms of the contract, and whether any balance was due to the plaintiff as .claimed in his petition. R"o other issues were raised by the pleadings.

The jury returned a verdict for the plaintiff for the amount claimed in his petition, with interest from the 15th of July, 1871. Judgment was rendered for plaintiff for that sum, with the interest as found by the jury. The plaintiff remitted the interest prior to January 1, 1872.

The defendants applied for a new trial on several grounds, which being overruled, they have appealed. It will not be necessary to notice but one ground of their motion and assignment of errors.

It appears from a bill of exception, taken by appellants, that the appellee, Gardner, who was a witness on the trial in his own behalf, testified that he had procured from appellants’ bookkeeper a memorandum of statement of his account with appellants, in order to make settlement with their cashier. After exhibiting the account, he was allowed, over defendants’ objection, to show by his own declarations made to defendants’ cashier at the time of the settlement with the cashier, that defendants owed him five hundred dollars more than he received under the terms of the memorandum furnished him by the clerk. The plaintiff was also allowed to prove the same facts by the cashier. Defendants’ objections to this evidence were overruled, and they excepted. -

We are of opinion that the court erred in admitting this evidence. It was not permissible to the plaintiff to state, on the direct examination, or prove by another, the particular facts which he may have communicated to other persons on a former occasion, when neither of the defendants was present. His assertion of the fact to defendants’ bookkeeper or cashier was not evidence which could affect the defendants, and could not be used for the purpose of giving additional strength to the testimony of the witness on the trial before the jury. Evidence of this character is excluded on the examination in chief, but the rule does not apply to a case where the other party is attempting to impeach the witness on cross-examination ; it is then a proper question, or when the fact is put in issue by the other party, the former statement and what was said may be shown. The rule excluding such testimony is confined to the examination in chief. The declaration of the plaintiff on any former occasion had not been put in issue by defendants on cross-examination or otherwise, at the time the plaintiff testified. There was no controversy between the parties in regard to the payment of twenty-five hundred dollars; it was admitted by the plaintiff. The issue on the pleadings had respect to the plaintiff’s claim above the sum admitted to have been paid. His statement to defendants’ cashier that the defendants owed him five hundred dollars more than he had received, had not been called in .question by defendants, and should have been excluded on the direct examination. (1 Starkie’s Evidence, 186, 187; 1 Greenleaf’s Evidence, 469; Deshon v. Merchants’ Ins. Co., 11 Met., 209. Commonwealth v. Wilson, 1 Gray, 340; Boston and Worcester R. R. Co. v. Dana, 1 Gray, 103.)

For the error in admitting improper evidence, the judgment is reversed and the cause remanded.

Beversed and remanded.