McAndrews v. Santee

7 Abb. Pr. 408, 57 Barb. 193

Opinion

By the Court.

Footnotes

•

*—Johnson, J.

The exception to the judge’s charge was a mere general exception, and 1 here is nothing to show as to which part or proposition in the charge it was intended to apply. Such an exception is of no avail where there is more than one point in a charge, and any portion of it is unexceptionable. But I think the charge was in all respects right.

If the contract was that the plaintiff was to abide and be governed by the measurement of the railroad inspector of wood, in respect to the quantity, then clearly he was entitled to have the wood actually measured by such inspector, or to have something done which would be equivalent to a measurement. He would not be bound by the mere guess or loose estimate of such inspector as to quantity.

In respect to the other point in the case, that the court erroneously allowed evidence to be given to show that both the defendant and his §on, who was his witness, stated the bargain for the purchase of the wood differently on the trial before the j ustice from what they had. stated it in their testimony on the trial then pending in the county court, the exception to the ruling is ' not well taken. The difference in the two statements was quite material upon the merits of the controversy, to wit: the quantity of wood which went into the purchase, to be paid for by the defendant.

As to the defendant himself, it was principal evidence against him upon the issue. •

It was in the nature of admissions or declarations by á party, which are always competent as principal evidence against the party making them. It was also competent as impeaching evidence against him or his witness. It is a different statement of a material fact. They denied having stated the bargain differently on the former trial, but alleged that on that occasion they had stated the bargain as they did on the then present trial.

Had they admitted that they stated it differently on the former trial, and that the omission there arose from a want of the recollection of the fact at the time, it would have presented a different ques'.ion. In that case there would be no propriety in proving the former statement by other testimony.

All that was decided in the case of Commonwealth v. Hawkins (3 Gray, 463), relied upon by the defendant’s counsel, was, that the mere omission to state a particular fact, now stated, in a former statement, was not the proper subject of comment by counsel to the jury against the credibility of a witness, unless the attention of such witness had been called to the omission in the course of his examination.

There was no error committed in the county court, and the order must be affirmed.

Present, E. D. Smith, Dwight and Johnson, JJ.