
    H. F. Cady Lumber Company, appellee, v. Wilson Steam Boiler Company, appellant.
    Filed January 23, 1908.
    No. 15,045.
    1. Appeal: Verdict: Evidence. When a verdict of a jury is found from conflicting testimony, this court will not inquire into the preponderance of the evidence.
    2. Trial: Evidence: Objections. An objection that a question is leading, incompetent, immaterial and irrelevant is not equivalent to an objection that the party is seeking thereby to discredit or impeach his own witness.
    3. Witnesses: Impeachment. It is within the discretion of the trial judge to allow counsel to ask a witness called by him, who takes him by surprise by his testimony, whether the witness had not at a prior time made a statement to him contradictory of or inconsistent therewith.
    Appeal from the district court for Douglas county: Willis C. Sears, Judge.
    
      Affirmed.
    
    
      W. J. Connell, for appellant.
    
      Baldrige & De Bord, contra.
    
   Ames, O.

The petition in this case alleges, in substance, that the defendant was indebted to Johnson & McAllister, a partnership, in the sum of $GS0 for goods sold and delivered by the latter to the former, and that on the 21st day.of February, 1903, Johnson & McAllister for a valuable consideration assigned the claim in writing to the plaintiff, and that on the same day notice of the assignment was given to the debtor, but that the latter had neglected and refused to pay thereon any further or greater sum than $404.05, leaving due and unpaid the sum of $222.75, for which plaintiff prayed judgment. The discrepancy is due to a mistake in computation, which is not in dispute and does not require explanation. The answer admits that at some prior time, not stated, the defendant had been indebted to Johnson & McAllister in some unspecified amount, but prior to the making of the “pretended assignment” pleaded in the petition the indebtedness had been fully paid by the defendant to Johnson & McAllister, and that subsequently thereto the defendant had by their direction paid to the plaintiff the sum of $404.05. Proof of payment was attempted to be made by evidence tending to show that before the defendant had notice of the assignment it had, by the direction and authority of Johnson & McAllister, paid the sum in dispute to and for the use of the latter to certain of their creditors. There is no dispute that at about that time the defendant' made payment by such direction to certain of such creditors to the amount stated, but whether before or after receiving notice of the assignment is disputed. The plaintiff had a verdict and judgment, and the defendant appealed.

The evidence is largely circumstantial, and each party contends with equal ardor and sincerity that it is so overwhelmingly in support of his side of the issues as to be practically without conflict. For that reason the plaintiff maintains that the verdict returned is the only one that could be permitted to stand, and for the same reason the defendant insists that the same verdict is wholly without support by the evidence. The arguments are about equally balanced, and there appears to us to be no great preponderance of the evidence on either side, and so the question seems to be one peculiarly within the province of the jury to decide. The examination of the witnesses, which is very long, we do not think it necessary to set out m .this opinion.. We have made such an examination of the record as to satisfy us that the‘evidence is conflicting within the meaning of the rule above alluded to. Neither do we feel called upon to set out the instructions, to the giving and refusal of which the defendant excepted. Suffice it to say that none of them appear to us to have been prejudicially misleading or to have been likely to confuse the jury in determining the very simple fact in issue.

Smith, a member of a partnership which was a creditor of Johnson & McAllister, to which the defendant claims to have made a payment on the day before the date of the assignment, was an unwilling witness for the plaintiff. He testified, among other things, that the payment in question was made by a check which was not presented to the bank on which it was drawn, and cashed, until the 29th day of May, but that he had no recollection and did not know when it was dated or when it was delivered to his firm. But he was the bookkeeper of his firm, and his ledger account book was produced and showed it to have been received on May 28, more than three months after the date of the assignment, and he testified generally that his books were correctly kept. But before this last incident happened he was asked on direct examination if he had not, within 25 minutes previously, stated to counsel for plaintiff that the check was given on May 28. The question was objected to by the following language: “I object to the question, now that it is allowed by the court, as an improper question, as an attempt to entrap his witness making a statement contrary to what he has already made, and for the reason that it is leading, and that no statement or claim has been made by counsel, nor has any foundation been laid, that will permit, authorize or justify the asking of any such question of this witness, and for the further reason that it is incompetent, irrelevant and immaterial.” The objection was oyerruled, and the witness answered: “I think I made that statement to Mr. Baldrige at the recess. That is my recollection.” Leading, the question undoubtedly was, but the admission of leading questions is largely within the discretion of the trial court; the fact that they are such affecting only the weight and credibility of the testimony elicited by them. We do not think that in this case the court abused its discretion in this regard. St. Joseph & G. I. R. Co. v. Hedges, 44 Neb. 448; City of Harvard v. Stiles, 54 Neb. 26; Schmelling v. State, 57 Neb. 562. Was it relevant or material that the witness stated out of court that he recollected an alleged fact of which he professed, a few minutes later, when on the witness stand, to have no recollection? Incompetent, in connection with the answer given as affecting the credibility of the witness, it certainly was not, because it is incredible that his memory on the stand would have been a blank concerning a fact that he recollected and related a few minutes before. It was competent, as being such a question as is always treated as such for the purpose of laying the foundation for an impeachment; and such a question is not legally or technically, although it may be strictly, irrelevant or immaterial. The real reason for exclusion, if any, is that it is not such a question as counsel for the plaintiff was entitled to ask his own witness, although he would have had a right under precisely the same circumstances to ask exactly the same question of the same witness, if the latter had been produced and sworn at the instance of the defendant; but that objection, or its equivalent, was not made, and so was waived. But it is by no means certain that even this objection would have been valid, if taken. As a preliminary to the question, the witness was told by counsel that its object was to refresh the recollection of the former, and so undoubtedly the latter would have been bound by the ansAver, that is, would not have been permitted to dispute the witness had he denied the statement referred .to. The authorities do not appear to be quite uniform as respects such a situation, but the Aveight of them seems to be to the effect that in such circumstances the question is, in the discretion of the trial court, admissible for the purpose of eliciting the truth from a confused or unwilling Avitness, and in the absence of abuse is not reversible error. People v. Payne, 13 Mich. 474; Dallas C. E. Street R. Co. v. McAllister, 41 Tex. Civ. App. 131, 90 S. W. 933; Smith v. State, 46 Tex. Cr. Rep. 267, 81 S. W. 936; State v. Cummins, 76 Ia. 133; 30 Am. & Eng. Ency. Law (2d ed.), 1130-1132, and notes.

We are satisfied that the defendant suffered no prejudice, and that the record is free from other error, and recommend that the judgment of the district court be affirmed.

Fawcett and Calkins, CC., concur.

By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is

Affirmed,  