author: Cooley Ch. J. Campbell J.

text:
    John Hutchings v. Edward W. Ladd et al.

      Forwarder: Instructions: Glet'k: Gustom. A forwarder bad property delivered to bis clerk to be sent by a common carrier to a certain point and there delivered to another carrier, with directions qualifying or imposing restrictions upon the delivery by the latter. Held, that the sending forward of such instructions with the property is fairly within the general scope of the forwarder’s business, and his clerk must therefore be presumed to have had authority to make a contract to that effect.
    A local custom not to make such contracts, .or instructions to the clerk to that effect can not be binding upon a party who has no knowledge of such custom or instructions.

      Fot'warder y Ratification of Glerks acts. The Circuit Judge charged that there was evidence tending to show the making by the defendant of the agreement the plaintiffs had counted upon.
    The evidence showed that the property was duly received, with written instructions, and the defendant forwarded them, complying with the direction in all respects, except in not accompanying them with a statement of plaintiffs’ charges. Held, That the jury were fairly at liberty to infer from the evidence that this was done by the defendant in person, and that he was aware of the instructions, and if so, they were right in holding him bound by these instructions. If the clerk exceeded his authority, the defendant, when it was brought to his notice, was at liberty to affirm or disaffirm it, but he could not affirm it in part and disaffirm the remainder without the consent of the plaintiffs. The defendant entered upon the performance of the contract without apprising plaintiffs that he disavowed any portion of it, and if he did this with the knowledge of the facts, as the jury might infer that he did, then he must be held to have affirmed the clerk’s action.

      Forwarder: Damages for neglect in obeying instructions. The instructions in the case were that defendant should deliver certain goods to the express company, and that said company should deliver them to one Martin on receiving from him a balance due on the goods.
    Defendant delivered them to a warehouseman without the instructions, and who in turn delivered them to Martin without collecting the money. Martin was then insolvent. The jury under the charge of the court gave a verdict for plaintiff for the full amount of the balance due.
    Held, That this was correct. The damages which the plaintiffs have suffered are-the very damages which were within the contemplation of the parties and against which the contract was to protect them. That damage can not be said to be too remote for recovery, on the breach of a contract proper in itself, which was the only damage the parties had in view in making the contract, and to prevent which was the only occasion for the agreement which has been broken.

      Heard April 15th.

      Decided April 21st.

    Error to Wayne Circuit.
    This was an action to recover alleged damages against plaintiff in error, who undertook to forward goods to Saginaw City, but failed to send certain instructions of plaintiffs concerning the collection of money due upon said goods.
    The declaration contained a single count which alleged that Nov. 2, 1865, defendant was a forwarder, engaged in the business of forwarding goods from the City of Detroit to Saginaw City, Michigan, and that on that day plaintiffs delivered to defendant certain goods to be by him forwarded to Saginaw City to the American Express Company, to be by said express company delivered to Joseph Martin, on their receiving from said Martin $64.76, and that the defendant undertook to forward said goods as agreed, and to send with said goods to said express company instructions directing them to deliver said goods to one Joseph Martin on receiving from Mm the said sum of $64.76, which, it is alleged, was due to plaintiffs from said Martin as part of the purchase price of said goods, tad which constituted a lien thereon.

      The plea was the general issue.
    The justice gave judgment in favor of defendant and plaintiff appealed. The trial in the Circuit Court was by a jury, and resulted in a verdict and judgment for plaintiffs for the foil amount claimed. On the trial, exceptions were taken by the defendant to certain rulings of the court excluding evidence offered by defendant, and to instructions given to the jury, and the case comes up for review as to the correctness of such rulings and instructions.
    The following are the assignments of error:
    1. In the sustaining of the objection of the defendants in error to the evidence offered by the plaintiff in error tending to prove:
    “That it was not usual or customary for common carriers at Detroit to receive goods for carriage, and give bills of lading therefor, with instructions to the consignee inserted therein, similar to the instructions which it is alleged in plaintiff’s declaration the defendant undertook to send with the goods in question.”
    2. In the sustaining of the objection of the defendants in error to the evidence offered by the plaintiff in error tending to prove—
    “That it was not usual or customary for■ forwarders in the city of Detroit to receive goods to be forwarded, and undertake to accompany them with instructions similar to the instructions which it is alleged in plaintiff’s declaration the defendant undertook to send with the goods in question.”
    3. In the sustaining the objection of defendants in error to the evidence offered by the plaintiff in error tending to prove—
    “ That it was not usual or customary for said defendant to receive goods to be forwarded and undertake to accompany them with instructions similar to the instructions which it is alleged in plaintiffs’ declaration he undertook to send with the goods in question.”

      4. In the sustaining of the objection of defendants in error to the evidence offered by the plaintiff in error tending to prove—
    “ That defendant ■ had prior to the reception of the goods in question instructed his clerks not to receive goods to be forwarded and undertake to accompany them with instructions similar to the instructions which it is alleged by plaintiff’s declaration the defendant undertook to send with the goods in question.”
    5. In the giving of the following instructions by the court to the jury, to wit:
    “That there was evidence fairly tending to show the making of the agreement by defendant counted upon in said plaintiff’s declaration, and that it was for them to say from such evidence whether or not said agreement was in fact made.”
    6. In the giving of the following instructions by the court to the jury, to wit:
    “That there was evidence tending to show that by the breach of such agreement on the part of said defendant the plaintiffs had suffered damage to the amount of the sum which was to be collected from said Martin upon delivery to him of said goods, to wit: $64.76, and that if they should find such agreement.to have been made, and that it had been so broken, and plaintiffs had by reason thereof suffered such damage, their verdict might be for the said plaintiffs for said sum of $64.76 and interest.”

      Newberry & Pond, for plaintiff in error.
    1. The evidence, the exclusion of which is the basis of the first, second and third assignments of errors, was clearly admissible.
    It had appeared by plaintiff’s evidence that the alleged contract, if made, was made on behalf of defendants by a clerk employed in his warehouse, and hence the question of the authority of said clerk to make such contract was a material one; and the only evidence as to his authority, given by the plaintiff, consisted in the fact that he was such clerk, and as such, charged with the duty of receiving-goods to be forwarded, and to give receipts therefor, and hence,

      Prima facie, his authority, implied by law from the nature of his employment, was to make such contracts in relation to the forwarding of goods, and only such contracts as it was usual and customary for forwarding merchants at Detroit to make. — 11 Gush. 586.
    The evidence offered was therefore admissible to show that the contract alleged to have been made by the clerk was beyond his authority, as implied from the nature of his employment, to make.
    2. The evidence referred to by the fourth assignment of error was, perhaps, unnecessary; but if, as we have contended above, there was no implied authority in defendant’s clerk, from the nature of his employment, to make the contract in question, it was clearly admissible to negative any claim or pretence of express authority.
    3. There are two errors involved in the instruction complained of by the fifth assignment of errors, to wit:

      First. In its assertion that there was evidence tending to show the agreement counted upon.

      Second. In submitting it to the jury to say whether or not such agreement was in fact made.
    There was no evidence tending to show that the contract counted upon was made.
    The only evidence of any agreement was the receipt signed by Hutchings & Go. and the paper left by Ladd & Co. with Hutchings & Co.’s clerk at the time of the delivery of the goods.
    Anil we submit that these papers do not tend to prove the agreement counted upon.
    The agreement which they show to have been made by Hutchings & Go. is either,

      1. To transport the goods to Saginaw, and upon delivery there to the consignee, to collect their (Hutchings & Go.’s) charges, $64.76; or,
    2. To transport the goods to Saginaw, and deliver them to the American Express Company for delivery to Martin, the ultimate consignee, upon the payment of their (Hutchings & Go’s) -charges, $64.76.
    By no recognized canon of construction can the agreement counted upon be worked out of these papers.
    4. The error of the charge upon which is predicated the sixth assignment of error lies in the assumption that the failure of Hutchings to send with the goods the instructions to the express company to deliver them to Martin upon payment of the $64.76 caused their delivery by the carrier directly to Martin without collecting the sum.
    Viewed legally, there can be seen no connection by way of cause and effect between the two things.
    The instructions were designed not for the carrier to enable him to determine to whom to deliver the goods, but for the express company to guide them in their action after the goods had come to their possession.
    And Hutchings, consistently with the agreement as counted upon and with the evidence as to it, might have sent the instructions to the express company along with the goods in a sealed envelope.
    As the goods were consigned to the express company, the carrier was as much bound to deliver them to such company without knowing of the instructions, as he would have been had he known of them.
    The loss of the $64.76, therefore, happened from the mis-delivery of the goods by the carrier and not from the failure of Hutchings & Co. to send the instructions to the express company, and plaintiff at the most was entitled but to nominal damages.

      Walker & Kent, and G. V. K. Lothrop, for defendants in error.
    1. The reception of goods by a forwarder, accompanied with instructions as to the manner of forwarding them, without objection, and the actual forwarding of the goods, not only tend to show, but conclusively show, a contract to forward in accordance with the instructions.
    2. The contract in question was made by the agent of the defendant below, and it will not be contended, we think, that the 'evidence ruled out could have been admissible for any other purpose save to show a want of authority in the agent.
    It is absurd to say that a man who makes a contract can avoid it by showing that the contract, is a very unusual one, either with himself or anybody else.
    In the case at bar, the stone were received and receipted for by the clerk whose business it was to attend to such matters. It does not appehr by whom they were forwarded, but it must be presumed to have been done by defendant’s agent for this purpose, if not by himself.
    Now, defendant’s agents must be presumed to have had authority to make any contract which was fairly within the scope of a forwarder’s business. The putting in the bill of lading a direction to the consignee that there are certain charges to be paid before the property is delivered is so simple a thing that we think an agent of a forwarder would be presumed to have the power to make a contract to do this, if such a thing had never been heard of before. The contract made was reasonable, and what plaintiffs below may have well presumed to be within their powers.
    If this be true, it can make no difference “that it was not usual or customary for common carriers at Detroit to receive goods for carriage and give bills of lading therefor, with instructions to the consignee inserted therein, similar to the instructions which it is* alleged in plaintiff’s declaration the defendant undertook to send with the goods in question,” or that it was not customary for other forwarders or defendant himself to send forward goods with such instructions.
    The power of defendant’s agents to make a contract binding upon their principal could not depend upon the question whether the contract was one made often or not. If it were a contract reasonably and fairly within the scope of the forwarding business, it is enough, though it were not made once a year, or indeed ever before.
    The private instructions which defendant gave his clerk of course can have no bearing with reference to their powers in their dealings with plaintiffs.
    3. It is admitted that defendant did not fulfill the contract in question, and that plaintiffs suffered the loss of their charges, $64.76. But it is urged that the loss resulted not from the failure of defendant, but the warehouseman to whom the goods were delivered by the carrier.
    But admitting this, it can not release the defendant from the consequence of his breach of contract. The warehouseman can just as well say, if defendant had performed his contract, I should have performed mine, and so each be excused by the other’s fault, and the plaintiffs left remedir less.
    Plaintiffs had a right by contract with defendant to provide against the carelessness or ignorance of the carrier and his agents, and to have such instructions sent along with the goods as to make their non-delivery to the express company utterly inexcusable.
    The failure of the defendant to carry out this contract, naturally if not necessarily, resulted in the loss sustained.
    In a considerable number of parallel cases it is settled that a breach of instructions makes the bailee liable for any loss which subsequently happens in the dealing with the goods. — 20 Ill. 375; 11 Gush. 102; 37 Ala. 505; 3 Mich. 268; 16 N. Y. 515.
   Cooley Ch. J.

I am not satisfied that there is any thing in the contract upon which the plaintiffs below declared, which is beyond the scope of the ordinary business of the forwarder; and if not, there can be no question of the defendant’s liability upon it, since his clerk, left in charge of the receipt of goods, must be presumed to have authority to make all such contracts as are usual and proper in the business in which he was employed; and this presumption, in the absence of any-knowledge by plaintiffs of restrictions upon such authority, must be conclusive.

It was always the duty of the forwarder to accompany the delivery of goods to- the carrier with such instructions, communicated to him for the purpose, as should seem necessary to ensure their carriage and delivery according to the wishes of the consignor; and these instructions were expected to govern the action, not only of the first, but of any subsequent carrier, until the goods should reach the hands of the ultimate consignee. It is true that carriers formerly were not expected to be collecting agents, nor forwarders to send on bills for collection; but when a new element was introduced into the carrying trade of the country by the establishment of organizations who not only carried property, but also acted as agents for the consignor in collecting from the consignee the price thereof, the proper and safe transaction of this business required that information respecting the charges, with the proper instruc-tions not to deliver until they were paid, should accompany the property itself; as the delivery would be expected to be unconditional unless such instructions were had.

The bringing of this new element into the carrying trade does not, of course, oblige the ordinary carrier to become a collecting agent also; but when his operations extend over a part of a line where goods are to be sent, and he is to be the medium of their delivery to an organization which is both carrier and collecting agent, there is nothing in the nature of the necessary instructions to such second carrier which makes them foreign to his business, or which makes it improper for the-forwarder to send or the carrier to take them. Such instructions are not of a new class or species from those which it is customary for a forwarder to insert in the bill of lading; they pertain to the carriage and delivery; and they can no more be considered aside from his ordinary business than would any other direction be, which did not happen to be usual in former times. A separate bill is not necessarily sent; and it is evident from the manner in which Mr. Ladd prepared the papers, that he neither expected nor desired a separate bill to be sent in the present case.

The case, then, plainly stated is this: A forwarder has property delivered to his clerk to be sent by a common carrier to a certain point, and there delivered to another carrier, with directions qualifying or imposing restrictions upon the delivery by the latter. I think the sending forward of such instructions with the property is fairly within the general scope of the forwarder’s business, and that his clerk must, therefore, be assumed to have had authority to make a contract to that effect. Undoubtedly the forwarder may decline to make airy such contract; but a local custom not to make them, or instructions to the clerk to that effect, can not be binding upon a party who has no knowledge of such custom or intsructions. He deals with one who he has a right to assume is vested with authority to make any proper contract concerning and properly connected with the forwarding of goods; and this is- one of' that character.

' But if I thought differently upon this point, I should still think the Circuit Judge was correct in charging the jury that there was evidence fairly tending to show the making by the defendant of the agreement the plaintiffs had counted upon. The receipt of the property by the defendant’s clerk under the special instructions is not disputed; but his authority to consent to send as directed is denied. The instructions to him were in writing, and they constituted the only means, so far as the jury were informed, by which the defendant was to ascertain who was the consignee, or to what place the property was to be sent. It is admitted that after the cleric had received the property under these instructions, the defendant forwarded them by common carrier to Saginaw, complying with the directions in all respects except in not accompanying them with a statement of the plaintiffs’ charges. It is not indeed stated that this was actually done by the defendant in person, instead of by his cleric or servant, but I think the jury were fairly at liberty to infer this from the evidence. And if so, they must also infer that he was aware of the instructions; and if he was, and saw fit to forward the property at all, I think the jury were right in holding him bound by those instructions. If the clerk exceeded his authority in making the special contract, the defendant, when it was brought to his notice, was at liberty either to affirm or repudiate it; but he could not affirm it in part and disaffirm the remainder without the consent of the plaintiffs. He entered upon the performance of the contract without apprising the plaintiffs that he disavowed any portion of it; and if he did this with knowledge of the facts, as the jury might fairly infer that he did, then he must be held to have affirmed the clerk’s action. Whether the evidence in the case is sufficient to satisfy us on this point, is another question. I only say that I discover no error in the charge of the Circuit Judge upon it.

A question of more difficulty, perhaps, is whether the plaintiffs were entitled to recover any thing more than nominal damages for the breach of the agreement. In the court below they were allowed to recover the full amount of their charges against Martin, the ultimate consignee. It appears that the carrier did not deliver the property, according to his instructions, to the Express Company, but handed it over directly to Martin. Defendant claims that the loss by the plaintiffs of their demand against Martin was not the direct and natural result of the breach of contract counted upon, but that if the instructions had been sent and the carrier had disobeyed them, as he did those actually received, the same result would have followed. The loss, therefore, it is said, happened not from the failure of defendant to perform his contract, but from the mis - delivery of the goods by the carrier. The plaintiffs reply that the carrier, not receiving any instructions which made the express company any thing more than mere agents for the delivery to Martin, might well feel justified in making personal delivery without their intervention; and that it is not to be assumed that he would have disobeyed directions in which any one appeared to have a beneficial interest. The defendant also claims that he would have complied fully with the contract if he had forwarded the instructions to the express company along with the goods in a sealed envelope; but I think otherwise. Instructions respecting carriage and delivery are usually inserted in the bill of lading; or so transmitted that each carrier through whose hands they pass is informed of them; and that is the fair import of a contract that they shall be sent with the goods.

Were, then, the damages of the plaintiffs too remote to be legally chargeable to the breach of the contract? In determining this it may be well to bear in mind that the very purpose of the plaintiffs in requiring the agreement which has been broken, was to prevent the precise loss which has been suffered. The directions were to be sent to prevent a delivery to Martin without payment of charges whereby plaintiffs would lose their demand. They were not sent, that delivery was made, and the plaintiffs lost their demand. The damages which the plaintiffs have suffered are the very damages which were within the contemplation of the parties and against which the contract was to protect' them. How then can they be said to be too remote to follow, legally, on breach, of the contract? True, if some other things had not intervened, the loss might not have occurred; but that damage can not be said to be too remote for recovery on the breach of a contract proper in itself, which was the only damage the parties had in view in making the contract, and to prevent which was the only occasion for the agreement which has been broken. See Hadley v. Baxendale, 9 Exch. 341.

I find no error in the' record, and think the judgment should be affirmed.

Graves J. concurred.

Christianoy J. did not sit.

Campbell J.

I think that the memorandum left with Hutchings does not disclose any thing from which it can be inferred that he was expected to give any instructions to the American Express Company, who had no 'duties of carriage to perform. If it imposed any duty on him to make any provision for the collection of the bill of purchase, I think it was to include it in the amount to be collected by the carrier. The memorandum requires the money to be collected on delivery, and inasmuch as the only delivery which can be anticipated in a forwarding contract is a delivery by the carrier, it seems to me that is the utmost effect which can be given to the receipt, and this is not the-contract declared on. I have seen no authority which sanctions the idea that a bill of lading can properly include directions concerning the duties and responsibilities of consignees after delivery to them, and I believe it to be unprecedented.

But if the contract should be deemed proved, as alleged, the damages in no sense resulted from the breach declared on. The carrier undertook to deliver the property to the American Express Company, and there was evidence from which it was probable that if the goods had been delivered to them there would have been no loss. At all events, until delivered to them, there could be no damage caused by failure to notify them what steps to take in collecting the bill from Martin. This loss may or may not have occurred had the carriers done their duty. Their knowledge of the conditions of the consignment would in no' way have changed their duty, and the loss is no more the result of a failure to forward instructions, than it would have been had the vessel foundered. An agent is liable for anything which results from his fault, but he is not liable for anything not so resulting.

I think the judgment was erroneous.


source: Caselaw Access Project

author: The Court

license: Public Domain

text:
    Charles W. Taylor v. Francis D. Boardman et al.

      Chancmj Practice: Be-taxation of costs: Laches. Where a party neglects to appear on taxation of costs after notice, and fails to show any excuse for snch non-appearance, the court will not grant him relief hy a re-taxation.

      Heard and Decided April 21st.

    Appeal in chancery from Kent Circuit.
    Motion for re-taxation of costs.
    This was an appeal in chancery, and it was dismissed on motion of the appellee for want of prosecution. The appellees thereupon proceeded to have their costs taxed after notice to the appellant, including in the bill of costs a solicitor’s fee of $30, instead of $10, as it should have been.
    The appellant did not appear on the taxation of costs to make any objection, and the bill was passed as it stood. Appellant asks a re-taxation, but does not in any way excuse his failure to appear before the taxing officer to make objection.

      A. Russell, for tbe motion.

      Geo. Gray, contra.

   The Court

held that the appellant should have appeared on the taxation; that, having failed to do so, ,he is not entitled to apply to this court for re-taxation unless he can excuse that failure.

Motion denied.


author: Campbell J. Graves J.

text:
    James Lightfoot v. The People.

      Burglary: Evidence. Upon trial for one burglary, evidence of a former one in the same house, and of defendant’s connection with it, is irrelevant. Such testimony should be excluded, as likely to prejudice the jury and lead to his conviction by proof of charges he can not be expected to anticipate.

      Deposition in criminal cases: Original evidence; Bow witness may be contradicted. A witness may be discredited by reading the depositions previously given by him in the same cause before the magistrate, and for this purpose they are original evidence, and need not be called to his attention unless it is desired to further cross-examine him concerning omissions or discrepancies. But a witness can not be cross-examined concerning his previous written depositions until they have been read entire to the jury in his hearing.

      Witness: Written document. A witness can not be asked whether or not he has made a certain statement in a written document; but the document itself is to be resorted to, to determine its own contents.

      Heard April 21st and 22d.

      Decided April 28th.

    Error to the Recorder’s Court of Detroit.
    The defendant was convicted upon an information for the crime of burglary.
    The case was removed to this court by writ of error with bill of exceptions.
    The facts are stated in the opinion.

      Wm. L. Stoughton, Attorney General, for the People.
    1. A witness stated that the defendant admitted, at the time of the commission of the offense, that he was the person who broke in the same premises in the previous May. This was a part of the res gestee, and therefore admissible. 1 Greenl. Ev. 108.
    Evidence may be admissible for one purpose though not for another.— 5 Serg. and Rawle, 117; 10 Id. 14; 1 Phil, on Evf739.

    The burglary in May was not under consideration, but the identity of the defendant and his knowledge of the premises and his antecedent preparations, were proper subjects of inquiry.— Whart. Am. Grim. L. § 828; 3 Selcl. 445 ; 2 Gush. 590.
    The fact that the breaking in May was a distinct felony, does not necessarily render the evidence incompetent. — Bish. Or. Proceed. §493 and note 2; 16 N. Y. 344; 4 Gratt. 534; 21 Picio. 515.
    It is not necessary that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof.— 1 Greenl. Ev. §51, and cases there cited; 15 Mich. 397.
    2. Upon the defense the counsel for the prisoner offered in evidence the minutes of the testimony taken by the clerk of the Police Court upon the preliminary examination, and returned to the -Recorder’s Court for the pturpose of contradiction. This evidence was objected to by the counsel for the people, and the court rejected all of such depositions “excepting the testimony of two witnesses, Mary Cassidy and Hortense Cassidy, concerning the facts to which their attention was particularly called on the cross-examination.”
    Before the credit of a witness can be impeached by proof of inconsistent statements, whether written or verbal, a foundation must be laid by questioning him as to his former statements.— 1 Greenl. Ev. § 462; 1 Walk. Gh. 48; 2 Mich. 415; 2 Phil. Ev. 958; 19 N. Y. 549 ; 2 Broad, and Bing. 313-314.
    If such statement is in writing and in existence, it must be produced and shown to the witness.— 1 Greenl. Ev. § 463; 2 Phil. Bv. 962-967; The Queen’s case, 2 B. and B. 286; 8 Wend. 395-398; 8 C. and P. 26, 726; 7 Id. 676.
    And in case of depositions taken before an examining magistrate, it must be shown that they are the identical papers Avithout alteration.— 8 Wend. 599; Comp. L. §5992; Sess. L. 1863, p. 307.
    The record shows that the depositions were not shown to the witnesses, and that no proof was offered in relation to them. They were not therefore admissible for any purpose.

      H. M. & W. B. Cheever, for defendant.
    1. It is not competent for the prosecution to place before the jury facts even tending to prove another distinct offense, so as thereby to raise a presumption that the prisoner is guilty of the offense charged in the information.— Poster, 245.
    It has been held on indictments for burglary and for larceny that evidence of the commission of previous crimes was inadmissible. — Birdope’s Case, 4 C. and C. 386; Vanclercoml’s Case, 2 Leach, 708.
    The only exceptions to this is evidence of other transactions, which, by reason of the time of their commission, seem to be a part of the offense charged, or are so connected that its admissibility can not be avoided, or where the guilty intent or knowledge of the prisoner is material to the issue.
    2. The depositions of the two witnesses, Mary and Hortense Cassidy, were admissible.
    By Section 2 of the Police Court Act, the Police Justice is given the same power in the examination of criminal cases, in this city, as is possessed by Justices of the Peace outside the city, and he is subject to the same laws. — Laws of 1850, p. 365, § 2.
    Justices of the peace, in the examination of criminal cases, not cognizable by them, are governed by the folloAving provision:

      “The evidence given by the several witnesses examined shall be reduced to writing by the magistrate, or under his direction, and shall be signed by the witnesses respectively.” Comp. L. § 5992; Laws of 1863, p. 307.
    In this case, the evidence of these two witnesses was “reduced to writing” by the Police Court clerk, acting “under the direction” of the Police Justice. The statute does not require the evidence to be read over to the witnesses before signing. They signed it, and it was taken in exact conformity to the statute.
    The depositions were regularly taken, and produced from the legal custodian to whom it was required by law to be returned.
    It is admissible to contradict or to impeach the witnesses against the prisoner without reading to them the entire deposition.— 3 State Trials, 131; Hawhs, P. 0. 62, Chap. 46, §9; 10 Gratt. (Va.) 658; 2 Smedes and Marsh. 10 Miss. 54; Thacker’s Grim, cases, 82; 19 Wend. 569.
   Campbell J.

Defendant was indicted for burglary. Upon the trial, one of the witnesses, in giving a narrative of what took place at the time, stated that defendant said he was the man who had broken into the house in the previous May.

The witness was then asked whether the house was broken into in May, and was allowed under objection to answer the question, and describe the breaking.

This was improperly allowed. What the witness said about defendant’s statement concerning the May burglary would not have been admissible as a distinct piece of evidence. It only got into the case as part of a narrative of what took place during the burglary for which the prisoner was on trial, and was not objected to for that reason. But the further testimony was independent evidence, having no tendency to prove anything but the earlier offense, for which defendant was not on trial. There was no connection between the two crimes, and proving one had no tendency to prove the other. It is very manifest that the admission of such testimony must prejudice the jury strongly against the prisoner, while he can not be expected to have made any preparation to meet such irrelevant charges. The rule of exclusion is even more important in criminal than in civil cases, because the consequences of its violation are more serious, and the danger of conviction on irrelevant matter is more direct.— 2 Russ. Cr. 772; Foster, 245; Roscoe Cr. Ev. 81; People v. Jenness, 5 Mich. 305.

The defense also offered to show by the depositions returned upon the preliminary examination that two witnesses sworn on the trial had testified differently in material respects there from what they did on the trial. The court refused to allow any part of the depositions to be read in contradiction, except such portions as the witnesses had been questioned on upon cross-examination had, and as to which they had been asked whether they had not made such statements. ,

The rule applied by the Recorder was the same which is adopted where the witness is sought to be impeached by proof of contradictory oral statements. It is the rule in this state, as in most other places, that, where a witness is to be impeached upon contradictory verbal statements, the inquiry must first be made of the witness himself whether he has previously made such statements, with convenient certainty of time, place and circumstance.— Sawyer v. Sawyer, Walker Ch. 48; Smith v. People, 2 Mich. 415. But where the statements relied upon for contradiction are not verbal, the rule is otherwise.

In the Queen’s Case, 2 Brod. & Bing. 284, this subject was somewhat carefully investigated, and it was stated by the judges that it was not competent to ask a witness whether he had not made certain statements in a letter, but that, when he had admitted the letter, the letter itself was to be read in evidence; and the Chief Justice said, “ one of the reasons for the rule requiring the production of written instruments is in order that the court may be possessed of the whole;” and he further remarks, that “the whole, if produced, may have an effect very different from that which might be produced by a statement of a part.”

And in the same case it was held that a witness could not be cross-examined concerning such statements without first ascertaining whether they were verbal or written, and if written they must be shown by the writing-alone.

It is a general rule that verbal admissions are only receivable of facts provable by parol. This is the ground upon which it has been held that a witness can not be inquired of as to whether or not he has made particular written statements. — Bellinger v. People, 8 Wend. 595; Newcomb v. Griswold, 24 N. Y. 298. And this rule applies with much more force to depositions than to private writings, for they stand as solemn testimony, and in many cases are receivable as original proof where the witness is not attainable. His oath on one occasion is as solemn and binding as on any other; and if his sworn declarations are inconsistent, they will, unless some good explanation is given, destroy the credit of the witness to' a greater or less extent. They are not like verbal conversations which may easily be perverted by treacherous memories, but stand without danger of change or misunderstanding through lapse of time. Where a witness has once been examined before a magistrate, the law presumes that the depositions contain all of his statements. It presumes further that those statements of witnesses were the only ground on which the prisoner was regarded as worthy of being charged as culpable, and put upon his trial for the offense alleged. They are required to be returned into the trial court for the express purpose of enabling the judge and jury to see whether the witnesses are consistent in their statements on the trial and on. the examination, and thereby to determine how far they are entitled to credit.— Lambe’s Case, 2 Leach, Case No. 236; 2 Starkie Ev. 276, 279; 2 Phill. Ev. 238 (4th Am. Ed.); Rex v. Coventry, 7 C. & P. 668; Rex v. Grady, Id. 668. The deposition is presumptively the best evidence of all that the witness said before the justice; and to require him to be cross-examined upon the facts would lead to very strange results, first, by allowing secondary evidence in lieu of primary, and second, by enabling the witness, by admitting the statements propounded to him, to shut out •the depositions altogether. For the rule is clear that where a witness admits the statement alleged, no other proof of his having made it is allowable.

It seems a very useless ceremony to aslc a witness whether a deposition contains a statement or not, when he is at liberty, according to all of the authorities, to see the paper on which he is cross-examined, or to hear it read. It would require no great stretch of candor to admit what it would be useless to deny. And, inasmuch as the candor and consistency of a witness can usually be better tested by a comparison of all that he has said, than by selecting detached passages, the effect of such a mode of examination as is claimed by the prosecution would be to prevent, the jury from ever finding out the precise history given by the witness on the preliminary examination. No such imperfect method of comparison was ever designed.

On the contrary the deposition relied on to establish a contradiction by the witness is original evidence for the party against whom he is sworn, and should be read in the case as independent testimony. The only occasion for bringing it to the attention of the witness at all, is where the party impeaching him desires to follow up the production, and reading in evidence of the deposition by a further cross-examination concerning the discrepancies and their causes. It would be unfair to cross-examine until the jury are informed of the precise contents of the deposition, and thus warned against assuming contradictions which do not really exist, and it would also- be unfair to the witness because he may have explanations which would not occur to him until his memory had been refreshed by hearing the paper read. But, except the case of Stephens v. The People, 19 N. Y. 549, where it is evident the point was carelessly decided, we have been referred to no well grounded line of authority which furnishes any support to the idea that the entire deposition should not in all cases be read to the jury, and left to their consideration. In Clapp v. Wilson, 5 Denio, 285, the whole subject was very carefully, considered, and it was held distinctly that the deposition was independent evidence and need not be introduced by way of cross-examination. The case of Stephens v. The People, does not allude to this decision, and contains no reasoning whatever on this point, and from the manner in which the various judges are said to have expressed themselves on other questions, it is extremely doubtful whether this question was passed upon at all by a majority of the court. It was of course decided in fact, but in their differences on other points, this seems to have excited no attention. They certainly would not have disposed so unceremoniously of the case of Clapp v. Wilson, had they turned their attention to it. The subsequent case of Newcomb v. Griswold, 24 N. Y. 298, re-affirms the doctrine of the earlier cases, and recognizes the rule that every writing must speak for itself, as well as the further rule before referred to that until a paper has been' read it can not be made the basis of cross-examination at all. In Williams v. Chapman, 7 Georgia, 467, it is also decided that the rule requiring a foundation for impeachment to be laid by interrogating the witness does not apply where it is done by means of his former deposition. In Lamalere v. Caze, 1 Wash. C. C. 413, the admissibility of depositions for that purpose is recognized. And it is not disputed that in the New England States the same practice is followed, although less weight is supposed to be due to their usage, because they are not so rigid in other cases of impeachment as we are. But our entire practice is based upon the English rule, and upon that there is no possible room for dispute.

It is said by Hawkins that since Lord Stafford’s case it has been admitted that a defendant may put in the depositions to show that the witness has contradicted himself.— Hawkins Pl. Cr. book 2, ch. 46, § 22. Siarkie and Phillipps also lay it down that depositions may be read to discredit, but not to corroborate a witness.— 1 Starkie, 423; 2 Phil. 238, 962, 968. And it is said on the authority of Reg. v. Holden, 8 C. and P. 606, and Reg. v. Shellard, 9 Id. 277, that it is improper to ask a witness whether he has always told the same story, without qualifying the question by adding “except when you were before the magistrate,” “or the coroner.” The same doctrine as to the use of depositions is laid down in 2 Russ. Cr. 896, and in Roscoe’s Gr. Fv. 74. And the courts have, on several occasions, commented on the importance of having very full and complete returns of the evidence before the magistrate for the express purpose of ascertaining how far the witnesses have been consistent.— Simons’ case, 6 C. and P. 540; Fuller’s case, 7 C. and P. 269; Rex v. Thomas, 7 C. and P. 817; Rex v. Grady, 7 C. and P. 650; Rex v. Coventry, 7 C. and P. 667. The case of Reg. v. Christopher, 2 C. and K. 994, contains a clear statement of the reasons why a deposition should be primary evidence, and points out the distinction between such minutes required by statute, and those notes of evidence made by judges or others for their own convenience, and not required by law to be preserved. Baron Alder son also refers to a note to Jeans v. Wheedon, 2 Moo. and Rob. 486, as valuable on this subject. To the same effect is Robinson v. Vaughton, 8 C. and P. 252.

In Reg. v. Taylor, 8 C. and P. 726, and Reg. v. Ford, 4 L. and Eq. 576, it was held that in all eases the deposition must be read before a witness could be cross-examined on it; and the rules adopted by the judges after the passage of the Prisoner’s Counsel Act, which are admitted to have been restrictive instead of in relaxation of the former practice, are very explicit in requiring the depositions to be introduced and read in evidence, before the witness can be asked any question whatever concerning his statements before the magistrate.— 7 C. and P. 676; Reg. v. Thomas, 7 C. and P. 817.

In Rex v. Oldroyd, Russ. and Ry. C. Ca. 88, the judge on the trial, upon his own motion, and without any cross-examination, having perceived a material discrepancy between the testimony of a witness and her previous deposition, directed the deposition to be read by way of impeachment. The question of its propriety having been reserved for consideration by the twelve judges, they agreed unanimously that the practice was correct.

The following American cases are also pertinent:— Thayer v. Gallup, 13 Wis. 539; Hughes v. Wilkinson, 35 Ala. 453; Downer v. Dana, 19 Vt. 338; Russell v. Coffin, 8 Pick. 143.

"We think that justice requires the allowance of such a course. If a party desires fo cross-examine the witness on the subject of his former statements, he should read the entire deposition in evidence before doing so. If he does not desire to cross-examine on that topic, it is sufficient to read it at any time. And if the prosecution think fit to examine the witness, so as to remove, if possible, any prejudice which is susceptible of removal, that is proper testimony in reply.

It is unfortunately true that magistrates are not as careful as they should be to make the depositions complete. But this does not change their character as legal returns, and any proper explanation is always attainable. But no rule should be permitted which will prevent the jury from having before them, if the prisoner requires it, the deposition itself as the best and only legitimate proof of its own contents.

The Recorder’s Court should be directed to grant a new-trial.

Cooley Ch. J. concurred.

Christianoy J. did not sit.

Graves J.

As my brethren have formed an opinion in this case very different from that which I entertain, I shall venture to present some of the views by which I am governed. In doing this, however, I can not be unaware that any deliberate determination by them will very justly outweigh any opposing ideas on my part, however firmly held.

There are but two points in the case, and both of them arise upon the rulings of the Recorder respecting the admission of evidence.

Mary Cassidy was sworn on the part of the people, and testified that she was in the house at the time of the burglarious entry, that the defendant was the person who entered, and that upon some remark being made by her sister as to the defendant’s being the man who broke into the house on a previous occasion, the defendant stated that he was the man who broke in, in May. The counsel for the people then asked this question: “State whether your house was broken in during the previous May?”

The defendant’s counsel objected to the question as immaterial and irrelevant, but the court overruled the objection, and the witness answered that her house had been broken into the previous May, that she saw on that occasion the person breaking when he was standing upon the top of the bay window, but could not tell whether the defendant was that person or not.” This presents the first question, and in the argument from the bar for the defendant, the objection to the testimony was placed upon the ground that evidence of a distinct or independent crime or transaction was inadmissible in a case of this description. It is believed that this proposition, can not be maintained in tbe broad terms in which it is laid down. No objection was made to the proof of the defendant’s statement at the house while in the very act, that he was the man who broke in, in May, nor could any be sustained if made. ITp to this point the testimony tended to show that the defendant was the party who had then entered, and also that he declared that he had entered in the May previous. If in point of fact an entry was made the May previous, it was corroborative of the prisoner’s statement as to ,his having been before at the very place, and that circumstance taken in connection with the declaration, must have had a tendency to show his acquaintance with the premises.

Of course, it will not be said that it was already proved that he was in the building, and that therefore no evidence of former acquaintance with the premises was requisite; since the whole matter was for the jury, and the precise view they would take of the evidence could not be decided in advance. They were to find whether any burglarious entry, as charged in the information, was effected; and if there was, then whether the defendant was the burglar. And certainly any testimony, whether strong or weak, having any tendency to show that the defendant had more or less acquaintance with the premises a short time before the entry charged, would be pertinent so long as the identity of the defendant with the entry charged should remain a part of the people’s case. The source from whence the testimony came was of no moment in the given instance, as the objection made was aimed only at the principle. Neither in my judgment could it make any difference that the knowledge as to the premises was obtained through criminal explorations instead of honest ones. If the people had been able to show that some months before the entry charged, the defendant had worked as a mechanic for a day or two in repairing or adjusting the particular window through which the entry was effected, it would have been permitted without a question. I confess my inability to see how the admission of the testimony can be made dependent on the purpose of the party in surveying the premises. Whether the knowledge is gained through criminal or honest practices is, it seems to me, beside the question, since the object is to show the knowledge and not the method of acquiring it.

The circumstance that the testimony would likewise tend to prove another offense ought not to occasion its exclusion as irrelevant, if actually relevant upon another ground and for another purpose. The people ought not to be debarred the privilege of showing that the prisoner was acquainted with the premises simply because he made that acquaintance in a criminal attempt.

It appears to me that the fact sought to be elicited as to the former entry, when connected with the statement imputed to the prisoner, though possessing but little weight, had a direct bearing upon the issue, and was properly admitted.— The People v. Jenness, 5 Mich. 305; White v. Bailey, 10 Id. 155; Beaubien v. Cicott, 12 Id. 459; 1 Greenl. Ev. § 49; Cow. & Hill’s notes vol. 1, note 330.

The second question grows out of the rejection of certain minutes of testimony taken by the committing magistrate.

The attorney for the people having examined Mary and Hortense Cassidy, they were severally cross-examined for the defense.

Hpon her cross-examination, the witness Mary was inquired of as to how she testified on the preliminary examination in regard to several matters, and she proceeded to state according to her recollection. Among other things she stated that the deposition taken at the police court was not read over to her before signing.

The same course was pursued with the witness Hortense, and attended by the same result.

It does not appear that the depositions or examinations made before the committing magistrate were produced or shown to either witness on cross-examination, or read to either wholly or in part.

The attorney for the people haying rested, the prisoner’s counsel put upon the stand the clerk of the Police-Court, who testified that he took the testimony of the witnesses in writing as required by law; that the examination in chief, but not the cross-examination was signed by the witnesses respectively; that Hortense and Mary were sworn and testified and signed their depositions in chief, though he could not say whether they were read over to them before the signing; that the depositions in Court were those taken.

The witness further stated that Mary testified on the examination that the prisoner locked her up in the room with the servant.

One Madison J. Lightfoot, another witness for the defense, also stated that the witness, Mary, testified before the magistrate that the prisoner, on being asked to leave the house, replied, “Do you suppose I’ll leave now, when I’ve been all night getting in? It’s now 4 o’clock.”

The prisoner’s counsel then offered in evidence the “minutes” of testimony referred to by the clerk which had been taken and returned, for the purpose of showing that the witnesses, Mary and Hortense, had testified in many material points upon said examination in a different manner than upon the trial, and to this the attorney for the people objected. The court decided that so much of the depositions of Mary and Hortense as concerned the facts to which their attention had been particularly called on cross-examination should be admitted, but that the residue should be excluded. This ruling, thus excluding so much of such depositions or minutes as had not been particularly «referred to in the cross - examination of Mary and Hortense, is claimed to have been erroneous. The broad ground is taken that these minutes prepared, kept, and authenticated as represented, were admissible in evidence in order to impeach the witnesses, Mary and Hortense, and where there had been no cross-examination upon the minutes themselves, and when such minutes had neither been read nor exhibited to the witnesses on the trial. All the minutes of the testimony of each witness were offered in evidence, when it affirmatively appeared that the cross-examination in neither case had been signed by the witnesses, and it was not shown that any portion of either deposition had been read to or by them, and the accuracy of the min-u'tes had not been established. The cross-examinations before the magistrate were as much a part of the depositions as the .examination in chief, and the statute expressly provides that the evidence, not a part of it, given by the several Avitnesses examined, shall be reduced to writing by the magistrate or under his direction, and shall be signed by the witnesses respectively. — -2 Comp. L. p. 1576, §5992.

This, and most of the provisions of. the chapter for the arrest and examination of offenders, were borrowed from New York.

In the People v. Restell, 3 Hill, 289, the depositions of one Mrs. Purdy, who had died after examination and before trial, were alloAved to be put in evidence on the- trial, on the part of the people, and the Supreme Court, by Bronson, Judge, held, that if the depositions were taken pursuant to law and had suffered no detriment, they were admissible on the trial — the witness being dead.

The foregoing provision, and another which we have also copied, were quoted at length, and it was held that the depositions were improperly admitted, since it appeared that they were not taken pursuant to law. In that case the cross-examination had not been taken in Avriting. It is to be observed that the right to give the depositions in evidence was then put upon the ground that the witness had died before the trial.

Judge Bronson, in alluding to the manner in which such examinations should be conducted in order to make the depositions evidence, said: “ The ansAver of the witness should be on oath. He should be first sworn and then examined, instead of taking the examination first and then swearing him to the truth of the statement, and the deposition should be taken as nearly as possible in the words used by the witness. When the direct examination is closed the defendant should be allowed to cross-examine at large, and the answers should be carefully -set down by the magistrate.”

These observations have a vital application to this case. Why observe all this care in taking down as nearly as possible in the words of the witness the answers on the direct and cross-examination, and why require the whole to be signed by the witness as is done by the statute, if the magistrate or his clerk may make evidence for the case by returning minutes, which were not read to or by the witness, nor signed by him, nor proved in any way to be accurate.

The admission of such testimony could not be placed upon the ground that the examinations were by law made the foundation of the subsequent proceedings and required accordingly to be sent to the Recorder’s Court, for the sufficient reason among others that they were not in substantial compliance with the letter or spirit of the .law under which they purported to have been made, and were not even substantiated by the oath of the clerk who made them.

The proposed proof was open to another serious objection. In addition to the infirmities in the proceeding already suggested, the minutes, or depositions, or examinations, as they have been indifferently called, were neither shown to the witnesses nor read to or by them on the trial, nor was there any cross-examination directed to the contents of the papers. The evidence was offered under the familiar rule that the credit of a witness may be impeached by proof, not rumor or hearsay, that he has made statements out of court contrary to what he has testified at the trial. Upon this subject Mr. Greenleaf says: “before this can be done it is generally held necessary, in the case of verbal statement, first to ask him as to the time, place and person involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so, nor whether he has always told the same story, because it may frequently happen that upon the general question he may not remember whether he has so said; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said. This course of proceeding is considered indispensable from a sense of justice to the witness; for, as the direct tendency of the evidence is to impeach his veracity, common justice requires that by first calling his attention to the subject he should have an opportunity to recollect the facts, and if necessary, to correct the statements already given, as well as by a reexamination to explain the nature, circumstances, meaning and design of what he is proved elsewhere to have said; and this rule is extended, not only to contradictory statements by the witness, but to other declarations, and to acts done by him, through the medium of verbal communications or correspondence, which are offered with the view either to contradict his testimony in chief, or to prove him a corrupt witness himself or to have been guilty of attempting to corrupt others.”

A similar principle prevails in cross - examining a witness as to the contents of a letter or other paper written by him.

“The counsel will not be permitted to represent, in the statement of a question, the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect, without having first shown' to the witness that letter, and his admitting that he wrote it. For the contents of every written paper according to the ordinary and well established rules of evidence are to be proved by the paper itself, and by that alone, if it is in existence.” — -1 Greenleaf’s Ev. § § 462, 463.

This citation is sufficient to exhibit the points involved. The essence of the rule is, that a sense of justice to the witness requires that he should be first interrogated upon the subject matter, whether written or verbal, involving the supposed contradiction, where it would be possible to make any correction or explanation; and that where the subject matter is in writing the rule requiring such interrogation is subject to the other rule that the paper is the best evidence of its contents. Hence, where the subject matter is in writing, a compliance with the first rule can only be secured by basing the inquiry upon the-writing, and the latter must then become the best evidence, of what it states.

The general rule was recognized in this court in 1852, in Smith v. The People, 2 Mich. 415, and it has been the received doctrine in the Circuit Courts for more than twenty years.

The principle must be the same whether the collateral statement be verbal or in writing, unless the circumstances show that a correction or explanation would be impossible.

Justice to the witness must be equally essential in the one case as in the other, and this is the foundation of the-rule.

Was this a case where explanation or correction must have been impossible?

Was it one requiring a denial of opportunity.

The humanity of the law ought to be as conspicuous in its tenderness to witnesses as to those charged as criminal offenders, and neither should be subjected to unnecessary rigor.

In the immense majority of cases, the preliminary examinations on criminal accusations are conducted in a summary manner, with little regard to form or technical accuracy. However exhaustive the inquiry, the examinations as written, furnish a most inadequate and uncertain record of the testimony as delivered.

And it is according to the experience of all tribunals who have had to do with the testimony so taken and preserved, that such examinations or minutes are but tbe imperfect translations of the language of witnesses into that of the writer, whether clerk or magistrate, and that the elements of their fallibility will depend upon a great variety of circumstances.

The observations of Lord LamgdaU upon an affidavit cited in a note by Mr. Gfeenleaf have a direct and important bearing upon the character of these examinations, and present very clearly some of the grounds and qualities of uncertainty they possess. He says: “I do not think that the veracity or even the accuracy of an ignorant and illiterate person is to be conclusively tested by comparing an affidavit, which he has made, with his testimony given upon an oral examination in open court. We have too much experience of the great infirmity of affidavit evidence. When the witness is illiterate and ignorant, the language presented to_ the court is not his; it is and must be the language of the person who prepares the affidavit; and it may be, and too often- is, the expression of that person’s erroneous inference as to the meaning of the language used by the witness himself; and however carefully the affidavit may be read over to the witness, he may not understand what is said in language so different from that which he is accustomed to use. Having expressed his meaning in his own language, and finding it translated by a person on whom he relies into language not his own, and which he does not perfectly understand, he is too apt to acquiesce; and testimony not intended by him is brought before the court as his. It is further to be observed that witnesses, and particularly ignorant and illiterate witnesses must always be liable to give imperfect or erroneous evidence, even when orally examined in open court. The novelty of the situation, the agitation and hurry which accompanies it, the cajolery or intimidation to which the witnesses may be subjected, the want of questions calculated to excite those recollections, which might clear up every difficulty, and the confusion occasioned by cross-examination as it is too often conducted, may give rise to important errors and omissions; and the truth is to be elicited, not by giving equal weight to every word the witness may have uttered, but by considering all the words with reference to the particular occasion of saying them, and to the personal demeanor and deportment of the witness during the examination; all the discrepancies which occur, and all that the witness says in respect to them are to be carefully attended to, and the result, according to the special circumstances of each case, may be, either that the testimony must be altogether rejected on the ground that the witness has said that which is untrue, either wilfully or under self delusion, so strong as to invalidate all that he has said, or else the result must be, that the testimony must, as to the main purpose, be admitted, notwithstanding discrepancies which may have arisen from innocent mistake, extending to collateral matters, but perhaps not affecting the main question in any important degree. — 1 Greenl. Ev. § 462.

The minutes in question were open to all the infirmities suggested by Lord Langdale, and a “ sense of justice to the witnesses” required the Recorder to exclude the testimony in the absence of the opportunity, for correction and explanation which the genius of the rule demands. — Newcomb v. Griswold, 24 N. Y. 298; Stephens v. The People, 19 Id. 549; Bellinger v. The People, 8 Wend. 595; Morrison v. Myers, 11 Iowa, 538; Samuels v. Griffith, 13 Id. 103; Baker v. Joseph, 16 Gal. 173; Mendenhall v. Banks, 16 Ind. 284; Unis v. Charlton’s Admr. 12 Grab. 484; The Queen v. Ford, 4 E. L. and E. 576; 2 Phill. Ev. Edwards Ed. 968; Matthew v. Dare, 20 Md. 248; Bobo v. Bryson, 21 Ark. 387; Strunk v. Ochiltree, 15 Iowa, 179; Wright v. Campsty, 41 Penn. State R. 102; Owen v. Rynerson, 17 Ind. 620; Scott v. King, 7 Minn. 494; The Queen’s case, 2 Brod. and Bing. 289, 290; 1 Greenl. Ev. § 465.

I think that the rulings of the court below were correct, and that the judgment ought to be affirmed.


author: Stone, J.

text:
    PERSON v. J. H. WORDEN LUMBER & SHINGLE CO.
    Trial — Argument—Conduct oe Attorney.
    In an action for the purchase price of lumber sold to defend'ants, argument of plaintiff’s attorney that “it is one of that class of cases that arise in this country every day in the year, where a lumber corporation refuses and delays to pay its jobber and tries to make him settle on their own basis and according to their own interpretation of the contract,” while improper, is not prejudicial error where counsel was checked by the court, admitted his error and tried subsequently to correct it, and the court instructed the jury to disregard anything which was said as to the character or wealth of the parties.
    Error to Chippewa; Steere, J.
    Submitted January 20, 1910.
    (Docket No. 101.)
    Decided February 3, 1910.
    Assumpsit by Eric G. Person against the J. H. Worden Lumber & Shingle Company for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Warner & Sullivan, for appellant.

      Herbert L. Parsille, for appellee.
   Stone, J.

This is an action of assumpsit brought in the Chippewa circuit court to recover a balance claimed to be due the plaintiff for the sale and delivery of a quantity of pulpwood, poles, and logs in the fall and winter of 1907. The declaration was on the common counts, and the plea was the general issue with notice of set-off.

Upon the trial plaintiff claimed that he had delivered material to the amount of $5,364.01. The defendant admitted $5,037.97 of the claim. The plaintiff admitted a set-off of $3,347.60, and the defendant claimed as set-off $3,469.91. The controversy at the trial hinged upon two propositions: First. Whether or not defendant agreed to allow ten per cent, discount on plaintiff’s purchases at the store; second, whether or not the defendant authorized plaintiff to ship a percentage of balsam pulpwood, and take plaintiff’s scale. We shall not review the evidence in the case. It is sufficient to say that there was a sharp conflict in the evidence upon the propositions stated, the plaintiff claiming that the defendant agreed to pay him $7 per cord for pulpwood and take the plaintiff’s scale; while the defendant insisted that the plaintiff agreed to accept the same scale in settlement for the pulpwood that defendant received from the companies purchasing the material.

The plaintiff recovered a verdict for $2,010.32 damages, and the jury answered two special questions submitted to them, as fellows:

‘c First. Did the defendant agree to give Person $7 per cord for pulpwood, and take his, Person’s, scale ?
“Answer. Yes; less eight cords at $7 a cord, $56.
“Second. Did Person agree to accept the same scale, in settlement for his pulpwood, that the J. H. Worden Lumber & Shingle Company received from the companies purchasing the wood ?
“Answer. No.”

The defendant brings error. While defendant’s attorneys claim that the verdict was against the'weight of the evidence, yet they made no motion for a new trial, nor do they assign error upon that ground, but they urge it in support of their position that the verdict was the result of the misconduct of plaintiff’s attorney in his argument before the jury, and claim that the verdict cannot be accounted for upon any other ground. The only assignments of error urged at the hearing were the last three, all relating to the conduct of plaintiff’s attorney in the argument of the case. On the argument by plaintiff’s attorney he said:

“I say that, under this contract, this man had a right to his pay when his contract was completed.
“Mr. Sullivan: I except, and say that it is not proper argument to this jury to comment on the time this matter has been in court. The continuances were granted for one cause or another, and it is prejudicial argument.
“The Court: Why the intervening time is proper evidence, as bearing upon the matter of interest.
“Mr. Sullivan: Yes; but he is not arguing on that. He is arguing on the good faith and fairness of the defendant in keeping the plaintiff out of his money for all this length of time.
“Plaintiff's Attorney: I think the argument is fair, and right in line with the contract, and it is leading up to my claim that we make, if the court please, in regard to the computation of interest upon this account, which we claim in this case.
“Defendant's Attorney: There is no question about your right to interest, certainly.”

Upon the foregoing, error is assigned. On the closing argument for the plaintiff, Mr. Hudson, one of his attorneys, said:

“ It is one of that class of cases that arise in this country every day in the year, where a lumber corporation refuses and delays to pay its jobber, and tries to make him settle on their own basis and according to their own interpretation of the contract.
“Mr. Sullivan: Now, I take exception to the remark of counsel.
“The Court: You have no right, Mr. Hudson, to comment on any other case than this.
“Mr. Hudson: 1 concede that, your honor, and ask the jury not to consider what I said about any other corporation.”

Upon the last above, the eighth assignment is based. On the closing of his argument Mr. Hudson said:

“We are not asking for anything because we are hard up, and poor, or that we are a single operator as against a large corporation.
“Mr. Sullivan: Take that down, Mr. Stenographer.
“Mr. Hudson: All we are asking for is fair treatment, and you may take that down, Mr. Stenographer.
“Mr. Sullivan: I except to the rehearsal and language of counsel.
“The Court: In what particular?
“Mr. Sullivan: In saying that the plaintiff is a poor man. I claim there is no testimony as to that — calling the attention of the jury to it both at this time and at the commencement of his address to the jury.”

Error is assigned upon the last quotation, by the ninth assignment. In the charge to the jury the circuit judge, among other things, said:

“ It so happens that, in the heat of litigation, there is a tendency often on both sides to ring in prejudicial matter, to get testimony before the jury of things which might detract from either one side or the other, which, in truth, have nothing to do with the question involved in the particular suit being tried. You have heard some objections and some exceptions and appeals to the court in that connection. It is a fact that all lawsuits mean delay. They mean to both parties annoyance, suspense and expense and uncertainty. In most lawsuits, one side or the other is in some particulars in the wrong, and also in the right. And, when cases come into court, where parties have been unable to adjust their differences, and appeal to the court, as they are authorized to do, the matters come up before the officials of the court to be adjusted and adjudicated, and it is particularly incumbent upon all of us who have the responsibility, to entertain no unkind feeling toward either side. They have a right to be in the court and litigate their cases, and their motives for bringing their cases and their financial circumstances are matters entirely foreign to the issue. It is absolutely immaterial what the financial circumstances of these parties may be. We have nothing to do with, and it has no bearing on, the case, whether or not one party to the suit is an individual and another a corporation, and one is better situated financially than the other. So far as we should know in this case, they come here on an equal footing, with equal rights, with matters in dispute which we, as officers of the court, are to take up and decide. And so, anything which has been said along that line ought not to be considered by the jury — ought to be entirely disregarded; and your attention should be directed to try and sift from the testimony what the facts in this case are, and to find out what the right between these parties is, irrespective of who they may be.”

The appellant’s attorneys, claim that the conduct of plaintiff’s attorney, and the action of the court herein set forth, constitute reversible error, and they cite the following cases in support of their position: Smith v. Jennings, 121 Mich. 393 (80 N. W. 236); People v. Plank-Road Co., 125 Mich. 366 (84 N. W. 290); Johnson v. Railway Co., 135 Mich. 353 (97 N. W. 760); Thompson v. Railway Co., 91 Mich. 261 (51 N. W. 995); Hillman v. Detroit United Railway, 137 Mich. 184 (100 N. W. 399); Whipple v. Railroad Co., 143 Mich. 41 (106 N. W. 690); Detroit Nat. Bank v. Union Trust Co., 145 Mich. 656 (108 N. W. 1092, 116 Am. St. Rep. 319); Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981). Counsel for the defendant has well said that the various decisions of this, and other courts, as to what constitutes reversible error in the conduct and argument of counsel, practically leaves each case to be decided upon its own facts. An examination of the cases relied upon by defendant’s counsel will show that they are extreme cases, and evidence gross misconduct of counsel, and manifest a studied purpose to induce the jury to deal with the corporations, in most cases, differently than they would with individual defendants.

In this case the language of counsel was not as extreme or as extravagant as in the cases cited by defendant; and the charge of the court called attention to the matter and cautioned the jury upon the subject, and instructed them that it was absolutely immaterial what the financial circumstances of the parties were, and that they had nothing to do with, and it had no bearing in, the case whether or not one party to the suit was an individual and another a corporation. There is no question that the language of plaintiff’s attorney in the sentence beginning with the words: “ It is one of that class of cases that arise in this country every day in the year, where a lumber corporation,” etc., was improper. But he was, upon exception by defendant’s attorney, immediately checked by the court, and afterwards he evidently attempted to correct the error; and defendant’s attorney in his closing words seems to give a strained and forced meaning to the language of plaintiff’s attorney. It is not the practice to reverse every case where there has been a departure from the strict rule, but much depends upon the particular circumstances. Dikeman v. Arnold, 83 Mich. 218 (47 N. W. 113).

In the following cases the effect of improper argument was held cured by the charge of the court: People v. Hess, 85 Mich. 128 (48 N. W. 181); People v. De Camp, 146 Mich. 533 (109 N. W. 1047); Davis v. City of Adrian, 147 Mich. 307 (110 N. W. 1084); Miller v. Insurance Co., 158 Mich. 402 (122 N. W. 1093); Samberg v. K. O. T. M. M., 158 Mich. 568 (123 N. W. 25). In Davis v. City of Adrian, supra, Justice Moore said:

“ Should the case be reversed because of the argument of counsel? The objectionable part of the argument, and it was objectionable and should not have been made, was intended to have the jury draw a contrast between the financial situation of the parties. The court at once told the jury in substance that the parties must be regarded as upon an equal footing. Had counsel desired the jury to be further instructed as to the argument, the court doubtless would have done so upon request.”

We are of opinion that there was evidence to warrant the jury in its verdict, that the case was properly tried, and that the circuit judge in his charge to the jury did all that could be done to cure the error complained of, and we do not think that the case is such that it calls for a reversal because of the remarks of the plaintiff’s attorney.

The judgment will be affirmed.

Montgomery, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: McAlvay, J.

text:
    SULKOWSKI v. ZYNDA.
    1. Evidence — Trial—Curing Error — Damages.
    In an action for injuries received in an assault, where plaintiff claimed that his skull was fractured and that stammering resulted, and testimony of physicians was admitted without a sufficient showing that the stammering resulted from the injury received, or the fracture examined was caused by the assault, it was error to postpone striking out the testimony during six days of the trial during which the jury had the same in mind.
    2. Same — Limitation oe Witnesses — Issues.
    It is error for the trial court to limit the number of witnesses upon a material and disputed issue.
    Error to Wayne; Donovan, J.
    Submitted November 17, 1909.
    (Docket No. 3.)
    Decided February 3, 1910.
    Trespass vi et armis by Joseph Sulkowski against John Zynda. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      William D. Fox and Malcolm McGregor (Howard B. Bloomer, of counsel), for appellant.

      A. A. Brere (Louis H. Wolfe and George A. Safford. of counsel), for appellee.
   McAlvay, J.

Plaintiff recovered a judgment against defendant upon a verdict of a jury for personal injuries claimed to have been inflicted upon him by defendant by a violent assault made upon him. Defendant has brought the case here upon a writ of error for review. Defendant admits that no importance attaches to the manner in which the altercation occurred, “ as the conflicting testimony in regard to it was properly submitted to the jury, and there is no assignment of error as to that part of the testimony. ” A statement of facts is therefore unnecessary.

The errors assigned which are relied upon are:

(1) that the court erred in allowing testimony in the case relative to an alleged fracture of plaintiff’s skull.

(3) That error was committed in limiting defendant in the number of witnesses he might introduce to testify as to plaintiff’s stammering before the claimed injury.

Plaintiff was an employe of defendant in his brewery in the capacity of firing the boilers and as night watchman, and the assault complained of occurred at midnight at the brewery, when he claims he was set upon by defendant and two others. In his declaration he sets forth that, among other serious injuries he received at this time at the hands of defendant, were injuries to his head, which affected his speech and caused stammering. The testimony relative to the alleged fracture of the skull was given by Dr. Schwartz, who had for the first time made an examination of plaintiff on the day previous to that on which he was testifying. This testimony was objected to for that reason, and an exception was taken to its admission, which was after the doctor had qualified as an expert. This was the only objection made until he had been cross-examined, when one was made on the ground that it was not shown that the fracture of the skull, claimed to have been found by the witness, occurred at the time of the alleged assault, or that it was the cause of the stammering of plaintiff. On the day following, at the close of plaintiff’s main case, counsel for defendant moved to strike out all of the testimony of this witness and Drs. Polozker and Schulte, as to what they found at the examination of plaintiff’s head on May 7th, for reasons above stated. This motion was overruled and an exception taken. The testimony for defendant was then introduced and afterwards rebuttal of plaintiff. The case was finished on May 13th, at which time the court in his general charge took this matter from the jury in the following words:

“I charge you by request that there is no evidence now competent to go to the jury to prove that the stammering of this man was caused by a dent in his head because there is no evidence of when the doctor examined that dent that he knew anything about when it was made. It would be a dangerous thing for the jury under the testimony to charge this stammering to the dent in the man’s head.”

The only request referred to by the court on this matter appearing in the record is the motion above noted. The evidence, in the opinion of the court, did not connect the claimed fracture of the skull with the assault, or show that the stammering resulted from such fracture. Defendant insists that the delay was prejudicial, that the jury had considered all this testimony for five days after the motion was made. We think that it was prejudicial error to delay passing upon the question for such a length of time. The jury must have had this evidence in mind during the remaining days of the trial and the arguments of counsel, and it would be impossible to remove its effect at the close of the case in this manner.

A very material element of damage declared upon, and to establish which proof was offered as above stated, was that as a result of injuries to plaintiff’s head his speech was affected by stuttering and stammering. In contradiction of this claim, and to show that plaintiff stuttered before the claimed injury, defendant introduced his own testimony and that of six other witnesses, and had others ready to testify to the same effect; but was not permitted to do so for the reason that the court limited each side to six witnesses upon this question. Defendant excepted to the ruling of the court. It is claimed that this objection is not timely or sufficiently stated. The objection of defendant could not have been misunderstood either by court or counsel. What occurred at the time, as shown in the record, makes this apparent. The point is well taken and is ruled by Barhyte v. Summers, 68 Mich. 341 (36 N. W. 93), where the exact question was passed upon. This court said:

“The court committed substantial error in limiting the number of witnesses to be sworn by either side upon a material and one of the main issues in the suit.”

There is a class of cases where this court has held that the number of witnesses may be limited. In Riggs v. Sterling, 60 Mich. 644 (27 N. W. 705, 1 Am. St. Rep. 554), this court so held upon the question of value of a homestead. In Detroit City Railway v. Mills, 85 Mich. 634, 659 (48 N. W. 1007), the court said that such limitation was within the discretion of the court in a chancery case; The question in that case was as to the construction of an electric street railway on a certain street in Detroit, and the testimony upon which the limitation was placed was as to the dangers and actual perils witnessed by persons from the use of the new (electrical) method of transit. The case is distinguishable from Barhyte v. Summers, supra. It was not only a chancery case, but the question upon which proof was limited was not a question upon which the case rested, nor, as in this case, a vital question of fact to be found by the jury.

For the errors pointed out, the judgment is reversed, and a new trial ordered.

Hooker, Moore, Brooke, and Blair, JJ., concurred.