p. 510and asking them if these letters were consistent with the transaction between the defendants and Harrison being a sale and purchase of the coupons.
At the end of the charge the defendants’ counsel requested the judge to instruct the jury to. disregard all of the letters of Mr. Harrison, written to the plaintiffs subsequent to the transactions of April 19, 1877, and the court so charged.
The jury found a verdict for plaintiff. Judgment thereon has been entered. There was a motion for a new trial made on a case and exceptions, at special term. The motion was denied.
Burton N. Harrison, attorney, and of counsel, for' appellants, among other things, urged:
I. The appeal from the order brings the whole case before the general term, which must now examine the case at large and decide it on the law and the merits as shown by the pleadings, the testimony, and the charge ; and if it now appears that an injustice has been done, that the verdict is against the evidence, or is upon insufficient evidence, or is for excessive damages, or is otherwise objectionable, the verdict must be set aside and a, new trial ordered, even though there may have been no exceptions or request to charge which presented the objections to the court on the trial (Luddington v. Miller, 36 Super. Ct. 7; Macy v. Wheeler, 30 N. Y. 237 ; Lennox v. Hoppock, 1 Sweeny, 469 ). The whole charge is now open to examination by the general term on the appeal from the special term order; and whether any particular part of the charge was excepted to or not on the trial, the inquiry here is whether it satisfactorily appears that an injustice has been done to the defendant by what now appears to have been a misdirection of the court on the trial (Keyes v. Devlin, 3 E. D. Smith, 523). So far as the court charged the jury that the question was one of fact for them to deter
p. 511mine, whether the defendants entered into the bargain, with the plaintiffs, and then failed to comply with it; that the vital question for their consideration was whether the defendants actually entered into the contract through the broker with the plaintiffs; that, if the jury deemed the coupons were sold by defendants to the plaintiffs, they must find for the plaintiffs. Here was a misdirection, which was calculated to mislead the jury, and for which a new trial should be granted (Castanos v. Ritter, 3 Duer, 370 ). This, under above cases, although there was no exception.
II. The letters written by Harrison to plaintiffs after the transaction, were not evidence against these defendants, and should never have been admitted when defendants objected to them as they did. And after admitting them in evidence, and allowing counsel to use them before'the jury as the only material he had on which to sum up for the plaintiffs, the judge himself finally conceded that they had no relevancy in the case and directed the jury (but too late) to disregard all of them.
Grimball & Tunstall, attorneys, and of counsel, for respondents, among other things, urged:
I. As to the letters written by Harrison prior to, and also subsequent to April 19, 1877, they constituted the res gestee. “These surrounding circumstances, constituting parts of the res gestee, may always be shown to the jury, along with the principal fact” (1 Greenl. Ev. § 108 ; Laning v. N. Y. C. R. R. Co., 49 N. Y. 538 ; Roulston v. Roulston, 64 Id. 654 ). And the letters of the broker Harrison were made competent for the purpose of cross-examination, to -contradict him and to show he falsified. It is well settled that if in the course of the trial evidence becomes competent, a new trial will not be granted, because admitted prior to that time. Every one of these letters and telegrams had
p. 512been called for by the defendant’s fourth cross-interrogatory to the witness Branch, who was required by the defendants “to produce and attach to his deposition aU the letters and telegrams” of the broker Harrison. They were, therefore, made evidence by the defendants, even if they were not competent themselves. By the Code (§ 911) objections may be made to testimony taken on commission which might be taken if the witness were personally examined, and those only. Now, if on cross-examination a witness is forced to produce papers by the adverse party, the cross-examiner cannot object to their admission. In the present casé, they were caused to • be attached to,, and thus made a part of, the deposition. They were not only identified but were made evidence. Depositions taken at the instance of, one party may be read on the trial by the other (
Weber v. Kingsland, 8 Bosw. 415 , 439 ; see Barry
v. Galvin, 37
How. 313 ; Jordan
v. Jordan, 3
Supm. Ct. (T. & C.) 269 ; Railway Passengers’ Assurance Co.
v. Warner, 1
Id. 21; Commercial Bank v. Bank of State of N. Y., 4
Hill, 519 ). The cross-examiner could not even withdraw his cross-interrogatory without
consent—a fortiori, when he did not desire to do so, must the evidence adduced by it be made evidence for both sides (Union Bank of Sandusky
v. Torrey, 5
Duer, 627 ). Directly in point is Marshal v. Roberts ( 10
Hun, 463 ).
I am, inclined to think that there was sufficient testimony to take the case to the jury, on the issue of whether Harrison was defendants’ agent, in making the agreement with plaintiffs. The examining of Harrison and one of the defendants, as to the alleged sale and purchase^ of the coupons between them, would prevent the case being taken from the jury. The jury’s scrutiny of the testimony of these witnesses, and finding that the partió
p. 513ular account given by them was not correct, would lead not only to a discrediting of the witnesses and a rejection of their testimony, but as against the defendants, one of them being examined, to a possible conclusion that there was nothing to be opposed to the claim that Harrison did act as broker. The perception of a jury may ascertain from the character and make-up of a fiction, what real event the fiction was meant to hide.
In other respects, the case was not a strong one for the plaintiffs. There were, if any, but two considerations that threw the balance in plaintiffs’ favor. The first grew out of defendants’ letters to the Raleigh bank, instructing them to send the coupons to the Richmond bank, and instructing the latter to deliver them up to the plaintiffs on payment of an amount at 87 cents on the dollar. Harrison had in a letter to the plaintiffs named the Richmond bank as the place of delivery. The second grew out of Harrison’s receiving §150 from defendants in settlement of what they alleged to be the purchase of the coupons by him of them. Neither of these was conclusive against the defendants. The coupons were in Raleigh. If Harrison had bought them in New York of the defendants and sold them to the plaintiffs to be delivered in Richmond, it was not unusual or improbable that, to avoid a formal delivery to Harrison and by his verbal request, the defendants should deliver to the plaintiffs and write the letters in evidence to accomplish that delivery, agreeing with Harrison to pay him the difference, less expenses.
As to the settlement for $150, though there was some testimony that if Harrison were entitled to the coupons, as buying them from defendants, his damages would have amounted to a greater sum, on the other band, there was no evidence that his brokerage would have been that sum. The amount does not of itself appear to be equivalent to a brokerage. And the suggestion that the settlement was upon the basis
p. 514of the profits that Harrison would have made by a sale to plaintiff at 87 is not without weight.
Down to Harrison’s letters after April 19, the negotiations and agreement had not clearly disclosed that Harrison was acting for somebody else. The third person referred to by him was, on the face of the letters, a seller to him, and the guarantee referred to was such as had been made by the seller, on the sale to him. At least, such a construction is not entirely inadmissible.
Therefore, when the letters of Harrison, written after the agreement of April 19 was then consummated, were received as competent evidence against the defendants, it must have had some effect upon the jury, that Harrison declared that he was only a broker. In a case so nearly balanced this effect may have been decisive. Although these letters were properly used upon Harrison’s cross-examination, they were then admissible only in respect of Harrison’s credibility, or to contradict him by his own declarations. This does not reach the further use made of them as evidence in themselves against the defendants. And I think it appears that the instruction at the end of the charge that the letters were not evidence, for the reason that if Harrison had, in fact, been an agent, his power to bind the defendants by his declaration ceased upon his making the agreement, may not have led the jury to undo what had been done in their minds, upon the testimony contained in the letters.
For the reason given, I am of opinion there should be a new trial. The other exceptions were not valid, but need not be stated in particular.
The judgment, and the order denying the motion for a new trial made at special term on the case as settled, are reversed, and a new trial ordered, with costs of the appeals to appellant to abide the event of the action. On the appeals from the orders denying motion
p. 515for new trial, one bill of costs with disbursements, if any, are to be taxed, as there has been but one argument.
Freedman, J., concurred.