Cooper v. Hills Bros.

to make over all my property and assets to the Hills Bros. Company. He told me that they would hold it in trust for me during my absence, and that upon my return they would return it to me. He told me that the purpose for which they would do this was to prevent any single creditor from attaching and selling my property to the detriment of the others. I told him I expected to be absent from four to six months. I made no objection to turning over the machinery and merchandise to the Hills Bros. Company, and their promise to return my property was not made in answer to any objection as to the machinery and merchandise. All the objection I made was to turning over the book accounts and the cash on hand. He said his lawyer would come either that night or the next night to my house, with the legal papers.” Either that night or the night following the lawyer came with the transfer in question. Webb made a statement to the lawyer that these goods were to be returned to him when he returned in the fall, at which the lawyer smiled, and made answer that he knew this; that he understood it to be but a friendly deal. The witness further testified that while in Texas he endeavored to borrow $2,000 from Hills for the object of remaining in Texas, and going in business there, which was refused, and he then returned to New York, in September, 1897. He saw Mr. John Hills, one of the officers of the appellant company. He told Webb that they had disposed of the machinery. Webb made another effort to obtain the loan of $2,000, which seems to have been unsuccessful, when he returned to Texas. He further testified that he wrote a letter from Texas, asking them to loan him the money, before he came home, and received a reply that the Hills did not care to loan it to him. Webb’s testimony was corroborated by that of his wife, taken under the same commission. The defendant introduced evidence tending to contradict this testimony of Webb, and offered in evidence a letter written by Webb, dated August 26,1897, a letter written by Webb of June 8, 1897, and three other letters from Webb written between June, 1896, and June, 1897. The letter of August 26, 1897, was objected to by the plaintiffs upon the ground that it was incompetent, irrelevant, and immaterial; that it was offered as a declaration made by Mr. Webb, and as against the plaintiffs any declaration made after their rights had accrued cannot be competent. The court sustained the objection, and the defendant excepted. There was no claim that the letter was introduced to impeach Webb as a witness, and on the cross-examination of Webb the letter was not submitted to him, and he was not interrogated about it. It is now claimed that this letter was competent, as tending to contradict Webb’s statement of the contract or arrangement made at the time the bill of sale by which Webb’s property was transferred to the appellant was made; but the letter was not competent as against the plaintiffs unless Webb’s attention had been called to the statements made in the letter which it was claimed tended to contradict him. As before stated, Webb was not examined as a witness in court; and before his declarations, made long after the transfer to the defendants, could be admissible for purposes of contradiction, it was necessary that the witness’ attention should have been called to the declaration sought to be introduced in evidence. The

objection was expressly taken that this letter was offered as a declaration made by Webb, and as against the plaintiffs, and that such declarations were not competent. That this was the ground upon which the letter was offered in evidence was not disputed by the appellant, nor did the appellant offer the letter for any other purpose. They must be considered as acquiescing in the statement of counsel for the plaintiffs as to the object for which the testimony was offered, and, as it was clearly incompetent for that purpose, it was not error to sustain the objection. It is true, the plaintiffs did not take the specific objection that Webb’s attention had not been called to the latter upon his examination, but, as the letter was not offered for the purpose of contradicting Webb’s testimony or discrediting Webb as a witness, it was not necessary for the plaintiffs to take that specific objection. But, however that is, the court would not reverse the judgment upon the ground that the proper objection had not been taken to evidence offered and excluded, when, for any reason, the evidence was incompetent, and it was properly excluded. The letter of June 8, 1897, was clearly incompetent for the same reason. Nor do we think that the letters did in fact contradict Webb’s testimony. In them Webb says that he gave the appellant everything he had. That this was true was not disputed. The conditions upon which the transfer was made were questions in dispute, and neither of the letters tendered to discredit Webb’s testimony upon those questions. The other letters which were excluded were written long before the transaction, and do not seem to have any relevancy to the point at issue.

As these were the only objections to the judgment, it does not seem that any error was committed, and the judgment should be affirmed, with costs. All concur.