
    Maynard French v. David Millard.
    If a witness be called to impeach another witness, it is not error to ask, “Are you acquainted with A’s reputation for truth and veracity; if so, what is it?”
    By the word “ reputation,” so used, will be intended the general repute of the witness sought to be impeached.
    It is not true in law that a witness must be credited, unless directly impeached or contradicted by other witnesses; his manner, the improbability of his story, and his self-contradiction in the several parts of his narrative, may '"■justify the jury in wholly rejecting his testimony, though he be not attacked in his reputation, or contradicted by other witnesses.
    If the court, in charging the jury, give an instruction not required by any evidence, the judgment will not be reversed for that cause, unless it plainly appear that such unnecessary charge was calculated to mislead the jury in considering the facts of the case.
    If a charge be asked, which as an entirety is not sound in law, though it might be better to give so much of it as would be unobjectionable, the court is not bound to do so, but may simply refuse the instruction prayed.
    Where money is paid on a contract between A B and 0 D, that a clerkship shall be procured by the latter for the former, and the consideration of such payment wholly fails, it is competent for the party who paid the money either to sue on the breach of the contract, or to rescind the contract and recover back the money, in an action for money had and received.
    This was originally an action of assumpsit, brought in the Superior Court of Cincinnati.
    The plaintiff claimed, on the money counts, for $500 advanced, as he insists, to one Thomas T. Cogar, and through him to the defendant, who actually received the money from Cogar; the plaintiff claiming also that French was one of the owners of the steamboat John Drennon, whereof Oogar was master, and that French, as such owner, agreed to give Millard the clerkship of the boat, but failed to do so.
    On the part of the defendant, it is claimed that French was not an owner, and that Oogar, the solo owner, received the $500.
    A full statement of the testimony is unnecessary, but, among other things, the evidence shows, that by written contract dated 21st February, 1846; Thomas T. Oogar agreed with Cunningham & Rogers, of Louisville, to build the boat for $9,300, to be paid as follows: $3,000 cash down, $3,000 in negotiable paper at six months, $400 cash while the boat was building, and the balance (except $750) in four and eight months after the work should be complete, and the $750 was to bo taken in stock in the boat.
    It appears that in January, 1846, Oogar, wishing to build a boat to run between Cincinnati and Frankfort, Kentucky, applied to several Cincinnati merchants to assist him in building the boat. These merchants were desirous of having *such a boat line established, and held several meetings, which, as is claimed, resulted in a determination not to become interested as owners. But, January 26,1846, the merchants agreed to lend OajDt. Oogar certain amounts of money, by them severally subscribed, for twelve months, without interest, and Oogar agreed to run the boat in the trade, and give the subscribers a lien upon the boat, and also to insure the boat, and deposit the policy for the benefit of the subscribers. It appears French and others subscribed for this purpose in different sums, to the amount of $4,800.
    French, J. P. Tweed, and Thomas H. Minor were appointed a committee on behalf of the merchants.
    At first, it was contemplated that Oogar would purchase a boat of Cajit. Blue, but the arrangement fell through, and he proceeded to Louisville, and there built a now boat as above mentioned, which was subsequently called the John Drennon.
    Before the boat was delivered, it appears Oogar was short oi money, and could not fully comply with his contract; and he could not get her from Louisville without some assistance. French loaned him $1,200, on his pledge to repay it out of the first earnings of the boat, and on the 6th June, 1846, Oogar mortgaged the boat John Drennon to Maynard French, J. P. Tweed, and Thomas H. Minor, conditioned to pay the persons who had loaned him money while building the boat, all of whom are named in the ■mortgage, and the amounts due to each. This was acknowledged 17th July, 1846.
    This last instrument was made in pursuance of the memoranda ■of 11th April, 1846, and also to carry out the original agreement, made íd January, to give a lien.
    Oapt. Cogar says that Millard was introduced to him in the summer or fall of 1846, by Mr. Tweed. Millard made one trip with him on the boat, and expressed a desire to become interested, saying he had watched the business of the boat, was pleased with the trade, and wished a situation on the boat. Witness informed him the boat was involved in debt, and he wanted some gentleman of •capital to take an interest with him in the boat; to advance money to pay her .debts, *which were nearly due. He stated that some gentlemen in Cincinnati had advanced money free of interest, and if he, Cogar, had a certain amount advanced to clear her of debts then maturing, he, Millard and Cogar, would soon run the boat free of debt.
    They finally agreed upon terms. Millard was then to pay French $500, and to pay over to Cogar in a few days $1,500 more which was to pay acceptances in bank nearly due. They then went to the office, and French told him Millard had paid, or arranged to pay him $500, for which Cogar gave Millard a receipt, stating in it that Millard was to have the clerkship. Millard then stated he would write immediately, and have the balance of the money by the time the debts would become due.
    Within a few days Millard was taken sick, and Cogar frequently visited him in his room—informed him that the debts were becoming due, and unless the money was forthcoming he would be under protest, and the boat would be attached, and all lost. But, says the witness, no money came; Cogar had disposed of the clerkship expressly to raise money to-pay the boat debts ; in consequence of the disappointment ho could not meet his debts, and the boat was seized. The interest Millard agreed to take in the boat was $2,000.
    The reason given by the witness why the $500 was paid to French was because he had lent Cogar $1,200 to enable him to get the boat out from Louisville, with a promise that the amount should be paid out of the first earnings of the boat, and he, Cogar, proposed to Millard that he should pay the $500 to French on that account.
    
      Cogar also declares that he was the sole owner of the boat.
    Mr. Tweed testifies that Millard told him he wanted to get a clerkship or situation on the John Hrennon. Witness suggested to him to buy an interest. He introduced Millard to some of the owners.
    Millard afterward told witness he had purchased an interest in the boat, conditionally, and had paid $500 thereon; the balance was left conditional.
    ^Charles Hubbell, .one of Millard’s witnesses, says that he aided Millard in raising $375; hoard defendant acknowledge he had received $500 ; says French said Millard should have the clerkship. This witness states, “that Millard was to have secured him by stock in the boat if he got it.” On cross-examination, he said Millard said “ he would transfer to witness his stock in the boat as security for the loan witness made him, which was $375; when he borrowed the money he said he would give stock in the boat as security; he did not agree to give other security.”
    On the trial, a witness named Warden was introduced to prove the character of Cogar, and was asked, “Are you acquainted with Capt. Cogar’s reputation for truth and veracity; if so, what is it?”
    Objection was made to this question, but the court allowed it, and the defendant excepted.
    The court below was asked to instruct the jury as follows :
    “ First. That if they believed the plaintiff agreed to purchase an interest in the steamboat John Drennon, and paid $500 on account thereof, and to pay $500 more by the time certain acceptances became due, no verdict could be rendered for the plaintiff.
    “ Second. That if they believe that Cogar was the only owner of the steamboat, and that French was not an owner in the boat John Drennon, and that his only interest was that of mortgagee of the boat, and creditor of T. T. Cogar, he can not be liable for money paid for the boat.
    “ Third. That if they believe French did agree, when he received the $500, if he received it in payment of a debt due by Cogar to French, and agreed to procure the clerkship of the steamboat John Drennon, and he afterward failed to procure that clerkship, still no recovery can be had in this action, because that- could only be recovered on a special count.
    
      “ Fourth. That it is their duty to give credit to the statements •of each witness, unless contradicted by other evidence—that in order to discredit the testimony of a witness, on account *of his general bad character, the witness who is called upon to discredit the witness, on account of general character, must prove that he is acquainted with the witness’ general character for truth and veracity; unless he can testify to his knowledge of such general character, that his swearing that he would not believe the witness under oath, is to have no effect on the testimony,—for it is not the belief of the witness that is to govern them, but the fact of the general bad character of the witness among his neighbors, and if no such general bad character is proved, the witness is to be considered entitled to the same credit as other witnesses.”
    The first of these charges the court refused. The second was-given with this addition: “ unless he represented himself to be an owner, and plaintiff relied on these representations.” The other charges were denied.
    A verdict having been entered, and judgment given for the plaintiff, the cause was taken to the distinct court in Hamilton county, where the judgment was affirmed.
    The present writ of error is to reverse the last-named decision..
    
      Fox, French & Fendleton, for plaintiff in error.
    
      Walker & Kebler, for defendant in error.
   Thurman, J.

The first question for our consideration is, Did' the court err in permitting the following question to be put to the-witness Warden, who was called to impeach the witness Cogar: “Are you acquainted with Captain Cogar’s reputation for truth and veracity—if so, what is it?” It is contended, that the question should have been, Are you acquainted with the general reputation of Cogar for truth and veracity? And it is said, and truly, that “it is not enough that the impeaching witness professes-merely to state what he has heard others say; for those others may be but few. He must be able to state what is generally said of the person by those among whom he dwells, or with whom he is-chiefly conversant; for it is this only that constitutes his general reputation or character.” 1 Greenl. Ev. 577.

*But it seems to us, that when the unqualified inquiry is made, what is a person’s reputation, his general reputation is-meant; and that the question is commonly so understood. When we say of a man; that he is of good or bad repute, we intend to-•.state the opinion generally entertained of him. If we mean to •speak of a limited reputation, we so express ourselves.

It is argued, however, that this is contrary to the decision in Bucklin v. Ohio, 20 Ohio, 18. It is said, by counsel, that there are two questions settled in that case, viz: 1. That the words “character” and “reputation,” in legal parlance, mean the same thing; 2. That, in order to impeach a witness, the question must bo confined to the general character or the general reputation.

It is true, that the court in that case said, and correctly, that the words character and reputation are often used as synonymous terms, though, in fact, they are not synonymous. And it is also ■true that it was held, that, whatever is the form of inquiry, it is ■only the general reputation of the witness that can be inquired about; but whether the inquiry should be confined to his general reputation for truth, or should extend to his general reputation in .all respects, was left undecided. N o precise form of interrogatory, however, was prescribed, or meant to be. Any question, not leading, that asks for the general reputation of the witness for truth, is sufficient; and if the word reputation, when unqualified, does ■ex vi termini, or in common parlance, mean general reputation, as we think it does, it is unnecessary to prefix the word “general.” The only point in controversy, in Bucklin v. Ohio, was, whether the impeaching witness could state his own personal knowledge of the character, as distinguished from reputation, of the witness sought to be impeached, and his opinion founded on that knowledge. The court held that he could not, and overruled the cases of Wilson v. Runyon, and Seeley v. Blain, Wright, 651, 683, in which a contrary doctrine had obtained. No decision was made on the question now before us.'

*Tho charge to the jury, and the refusal to charge as re•quested, are next objected to. The court was asked to instruct the jury: “That if they believed Cogar was the only owner of the steamboat, and that French was not an owner in the steamboat John Drennon, and that his only interest was that of mortgagee of the boat, and creditor of T. T. Cogar, ho can not be liable for money paid for the boat.”

The court gave the instruction after adding to it the following •words : “unless he represented himself to be an owner, and plaintiff relied on these representations.” It is not claimed that the in-struction, as amended, is bad law, but it is argued that it was erroneous to make the amendment, because there was no proof that rendered it necessaiy. Suppose it was unnecessary, why should we, for that reason, reverse the judgment? We do not see .that it was calculated to mislead the jury in their consideration of the facts, and unless it wore so calculated, how was the plaintiff in error prejudiced by it? We are not able to discover. Again, it is not strictly accurate to say that there was no evidence upon which to predicate the amendment. There was certainly no express testimony that Millard paid, or advanced, his money upon any representation of ownership by French, but circumstances wore given in evidence that possibly tended to prove that such was the fact. However weak these circumstances may have been in the opinion of the court, yet, as it was the province of the jury to' pass upon them, it was not improper to state 'the law that would be applicable to the fact if proved.

The court was next asked to charge the jury: “ That if they believe French, when he received the $500, if he received it in payment of a debt due by Cogar to French, agreed to procure the-clerkship of the steamboat John Drennon, and he, afterward, failed to procure that clerkship, still no recovery can be had in this action, because that could only be recovered on a special count.”

The instruction was refused, and, as we think, very properly.. The case supposed is one of a total failure of the ^consideration for which Millard parted with his money. In such a case, it was competent for him to sue upon the contract, and recover the damages he had sustained by its breach, whether more or less than, the $500 he had paid. Or, he might rescind the contract and recover back the $500 in an action for money had and received. He-took the latter course.

The court was also asked to instruct the jury: “ That it is their duty to give credit to the statements of each witness unless contradicted by other evidence; that in order to discredit the testimony of a witness on account of his general bad character, the witness who is called upon to discredit the witness on account, of general character, must prove that he is acquainted with the witness’ general character for truth and veracity; unless he can testify to his knowledge of such general character, his swearing that he would not believe the witness under oath, is to have no effect on the testimony. For it is not the belief of the witness that is to-govern them, but the fact of the general bad character of' the wit* jiess among his neighbors, and if no such general bad character is proved, the witness is to be considered entitled to the same credit as other witnesses.”

This instruction was refused, for the reason, as we suppose, that it was asked as an entirety, and part of it was, in the opinion of the court, unsound. It would, perhaps, have been better to give ■.so much of it as was unobjectionable, and refuse the residue only ; but the court was not bound to do so. The instruction being prayed for as a whole, it was competent for the court to refuse it ■entirely, if any part of it is inadmissible. Is there any such part? Wo think there is. The first clause affirms that it is the duty of a jury to give credit to the statements of each witness, unless contradicted by other evidence. How is this to be done whore, as is .sometimes the case, a witness’ own statements are directly at variance with each other? And is a jury to be told that no matter what is the manner of a witness, no matter how many and gross are his contradictions, no matter *how apparent may be his ignorance or incapacity, no matter how manifest it may be that he has manufactured or is manufacturing his story, no matter how •clearly his willingness to swear falsely may be seen, no matter how incredible may be his narrative, he must yet be credited “ unless contradicted by other evidence ?” The counsel of the plaintiff in error says that this is not a fair interpretation of the charge.asked, but we think it is that which would naturally be put upon it by a jury. The natural import of the language is, that a witness is to bo believed unless contradicted by other testimony than his own, and this is strengthened by the last clause of the instruction, which assorts that if general bad character for truth is not proved, “ the witness is to be considered entitled to the same credit as other witnesses.” Surely, this, taken in connection with the first clause above quoted, is putting all witnesses, not proved to be of bad •character, upon the same footing, no matter how obvious it may be that some are more entitled to credit than others.

But one more point remains to be considered. It is assigned as error that the court refused to grant a new trial. This point has given us some difficulty. We are not satisfied that the verdict of the jury was right. But this is not enough. Amere difference of opinion between the court and the jury does not warrant the former in setting aside the finding of the latter. That would be, in effect, to abolish the institution of juries, and substitute the court to try all questions of fact. It must be clear that the jury has erred, before a now trial will be granted on the ground that the verdict is against the weight of evidence. In this instance, although wo can not say that our judgments approve the verdict; yet, on the other hand, we are unable to say that it is clearly wrong.

Judgment affirmed.  