p. 49ALLAN HAY, Plaintiff and Respondent, v. COLUMBUS C. DOUGLAS, Defendant and Appellant.[Decided December 4, 1869.]Headnote
Where a party, on Ms direct examination as a witness on Ms own behalf, with a view to strengthen Ms testimony on the main issue, testifies to another transaction had with the other party, which is not strictly within the issues to be tried, but calculated to throw light upon them, the extent of his cross-examination as to such other transaction rests in the sound discretion of the justice presiding at the trial.Where a deed containing an interlineation in the description of the premises conveyed thereby is offered merely as a piece of corroborative evidence to sustain plaintiff’s testimony as to the actual occurrence of a transaction forming the principal issue, the deed is admissible without previous explanatory testimony in relation to the interlineation.
And where such deed is not set forth in the printed ease, and on appeal no other evidence is presented from which it can be seen that the interlineation actually exists, the General Term will not assume its existence simply because the case shows that a motion for its exclusion on that ground was made on the trial.
Before Chief-Justice Barbour and Justice Freedman.This case was tried before Mr. Justice Monell and a jury.
The facts sufficiently appear in the opinion of the court.
Mr. J. F. Harrison for appellant.
The justice erred in allowing evidence, in the cross-examination of the defendant, as to the purchase of the West Virginia lands.
The allusion to the West Virginia land in his direct examination was but incidental and no part of the case; and it was error to suffer the plaintiff’s counsel to pursue that subject in the cross-examination.
It was error to allow the deed with interlineations in that clause which expressed the interest purporting to be conveyed by it, to be introduced in evidence without proof of its delivery to Douglas, and that it was so interlined at the time of its delivery.
There was no evidence in the case that the deed which fur
p. 50nished the sole consideration, if any, to support the promise contained in the note, was ever delivered to Douglas, or that he ever saw it, or knew its contents. Delivery of a deed is essential to its validity (Church v. Gilman, 15 Wend., 656 ).
Despite the promise on the part of Hay to pay the money to Berry, the transaction would be incomplete, as furnishing the consideration for the note, without showing the delivery of the deed. Douglas was in the same position as if the note had been given directly to Berry for the consideration money (Clark v. Gifford, 10 Wend., 310 ).
The deed bearing upon its face an interlineation in so material a portion as the amount of interest conveyed, it was improperly received in evidence without explanation on the part of the party producing it, that such interlineation was made before its execution and delivery (Jackson v. Osborn, 2 Wend., 555 ; Herrick v. Malin, 22 Wend., 388 ).
It was error to exclude testimony offered on the part of the defendant, in answer to the question in relation to the purchase of these lands.
As had been stated, the allusion made to the West Virginia lands on the first examination of the defendant was but incidental, and not continued. When, then, the plaintiff had been suffered to go over the whole transaction, and his version to be fully placed before the jury, it was error that the defendant .■should be shut out, and not permitted to testify in that behalf.
Mr. John E. Burrill for respondent.
The question by the plaintiff’s counsel as to the purchase of the lands in West Virginia was proper.
It was on the cross-examination of the defendant, who had testified in regard to the purchase, but had omitted to give the name of the seller, and it was necessary to identify the transaction.
Again, the question and answer, even if improperly admitted, •could not by any possibility have affected the result; and even
p. 51had they been improperly admitted, the court will not interfere.
The deed was properly admitted.
Even if it had appeared from the deed that the part which expressed the.intended property to be conveyed by it was interlined, that did not invalidate the deed, nor render it necessary for the plaintiff to offer explanatory testimony in regard thereto before offering it in evidence.
The testimony offered by the defendant in relation to the purchase of these lands was properly excluded.
By the question the defendant sought to re-examine the plaintiff generally as to the “ transaction in regard to the purchase of the land.”
The court did not rule that the defendant could not offer testimony on that subject, but merely confined the re-examination to the. points developed in the plaintiff’s evidence.
The witness here sought to be re-examined was the defendant himself, who had already been examined on his own behalf, and cross-examined, and his testimony closed.
By the Court:
This is an appeal from a judgment upon exceptions taken at the trial of the action at the Trial Term of this Court. The action was upon a promissory note made by the defendant to his own order for five thousand dollars, dated January 23, 1868, and by him indorsed and delivered to the plaintiff. The defendant by his answer admitted the making, indorsement, and delivery of the note, that the same is held and owned by the plaintiff and the non-payment thereof, but claimed that the said note was a renewal of another note made by the defendant, dated April 27,1865, that the original note was loaned to the plaintiff, and was without consideration, and that the note in suit was given in renewal thereof for the accommodation of the plaintiff.
The defendant, having the affirmative of the issue, was examined at the trial as a witness on his own behalf and substan
p. 52tially proved, the allegations contained in his answer, and among other things testified that the plaintiff, having organized a scheme for the purchase of a large tract of land in West Virginia, applied to the defendant for a loan of his note, so that he, the plaintiff, could get it discounted and thus be enabled to raise money to pay on account of this property. On his cross-examination, the defendant was required to state from whom the lands in West Virginia were to be purchased. This question was objected to, but allowed, and defendant now insists, that it was error to suffer the counsel of the plaintiff to pursue that subject. I think the question was entirely proper to identify a transaction testified to by the defendant upon his direct examination, and its admissibility was, to say the least, a question resting in the sound discretion of the justice presiding at the trial, with which the court at General Term will not interfere.
The next exception relates to the admission in evidence of a certain deed relating to this West Virginia land. The defendant had rested; the plaintiff had gone upon the stand and shown that the original note was not loaned, but delivered in payment for an interest in this land given by plaintiff to defendant. To corroborate his statement, the plaintiff offered in evidence a certain deed bearing date seven days prior to that of the original note. The counsel for the defendant objected on the ground “ that it appeared by the deed then produced and exhibited, that the part which expressed the interest purporting to be conveyed by it to the parties was interlined, and that there was no proof that it was in that state at the time of its pretended delivery.” The form of this objection does not entitle the appellant to argue the question of the sufficiency of the evidence of a delivery of the deed upon appeal for the first time. The deed itself has not been printed in the papers upon which the appeal is brought on, and there is no other evidence from which I could judge whether the ground upon which the objection was actually put, namely, the existence of a material interlineation, existed in point of fact. I certainly cannot, on appeal, assume that the fact alleged in regard thereto was true. But even if such inter
p. 53lineation did appear from the deed, I am inclined to think that the deed was admissible without previous explanatory testimony in relation to such interlineation. The question to be tried was whether there was a loan of the note, or whether a consideration was given for it. Under the pleadings, the defendant, if liable at all, was liable for the full amount of the note; nor did he at the trial propose to litigate the question of a partial failure of consideration. The deed referred to- was offered simply as a piece of corroborative evidence to sustain plaintiff’s version in regard to the main issue. ETo error, therefore, was committed by its reception.
The only remaining exception was taken to the refusal of the court to permit the defendant, when recalled for the purpose of rebutting plaintiff’s testimony, to be re-examined generally as to the transaction in regard to the purchase of the land. But, inasmuch as it appears that the defendant was subsequently allowed, in answer to specific questions, to give such further evidence as to the details of the transaction as he desired, this exception is clearly untenable.
. The judgment should be affirmed, with costs.