
    Second Ward Savings Bank vs. Shakman and another.
    Practice— Evidence.
    
    1. Where all material averments of the complaint are admitted by the answer, and new matter set up in avoidance, defendant has the affirmative, and the right to open and close.
    2. Thus, in an action upon a note, against maker and endorser, where the answer admitted all the averments of the complaint, but alleged as a defense that plaintiff took title from one who had discounted the note at a usurious rate, defendant had the affirmative.
    3. A judgment will not be reversed because appellant has been erroneously deprived of his right to open and close, unless there appears " ground for believing that he was irywred, thereby.
    4. Acts or omissions of a witness forming no part of the res ffestce are not admissible to confirm his testimony.
    5. Thus, a member of the firm alleged to have discounted the note in suit having testified for the plaintiff that they did not discount it, but acted as defendant’s agents in procuring plaintiff to discount it at a lawful rate, it was error to permit plaintiff to introduce in evidence the books of said firm (verified by the witness) to show that they were in the habit of entering all notes discounted by them, and that the note in suit was not so entered.
    APPEAL from tbe County Court of Miboaulcee County.
    Tbe complaint is upon a promissory note, made by tbe defendant Herbst, payable to tbe order of tbe defendant Shakman, at tbe bank of tbe plaintiff, and endorsed by tbe payee, and it contains tbe usual averments of protest, non-payment, and of tbe ownership of tbe note, by tbe plaintiff. ~
    
      Tbe defendants, in'their answers, do not deny any of the material allegations of the complaint, but they allege that Shahman was an accommodation indorser; that before the note came into the possession of the plaintiff, it was discounted by the firm of Auer & Yelten, at an usurious rate of interest, to-wit, thirty per centum per annum, and that Auer & Yelten afterwards transferred the note to the plaintiff.
    On the trial of the action, and immediately after the jury were sworn, the defendants demanded the right to open the case to the jury, to first introduce their proofs, and to open and close the argument. The court overruled such claim and held that those rights belonged to the plaintiff.
    The plaintiff then introduced in evidence the note described in the complaint, and a certificate of the protest thereof, and rested. The defendants then introduced testimony tending to prove the allegations of their answers. Thereupon the plaintiff offered testimony tending to show that Auer A Yelten procured the plaintiff to discount the note for Herbst, and at his request, they acting in that behalf as the agents of Herbst, that they indorsed the note at his request, that the plaintiffs discounted it at a lawful rate of interest, and paid the proceeds to Auer & Yelten, who paid over the same to Herbst, and that thereupon Herbst paid to Auer & Yelten a commission for their services in the matter as his agents.
    Louis Auer, one of the witnesses called by the plaintiff to prove the foregoing facts, and one of said firm, testified on his direct examination, that his firm kept in their business a bill book, in his handwriting, in which was entered all notes discounted by the firm, and the witness produced and identified such book.
    He was thereupon asked by counsel for the plaintiff if the note in suit was entered in said book by Auer & Yelten. The defendant’s counsel objected to the question as irrelevant, incompetent and immaterial, but the objection was overruled by the court, and the witness answered that the note was not entered in said book as discounted by Auer & Yelten, and was not entered in tbe book at all.
    Tbe plaintiff bad a verdict for tbe amount'due upon'said note by tbe terms thereof, upon wbicb verdict judgment for tbe plaintiff was afterwards duly entered. Tbe defendants bave appealed from sucb judgment to tbis court.
    
      Jenkins & Elliott, for appellants,
    to tbe point that tbe court erred in awarding to respondent tbe affirmative of tbe issue and tbe opening and closing arguments to tbs jury, cited Marshall v. American Express Company, 7 Wis. 1; Central Bank of Wisconsin v. St. John, 17 Wis., 157; McLaren v. Kehlor, 22 Wis., 297. To tbe point that tbe court erred in admitting tbe evidence of tbe non-action of tbe witness Auer in corroboration of bis testimony, counsel cited Young v. Miles, 20 Wis., 615.
    
      Austin & Wallber, for respondent,
    argued that tbe question as to wbicb party should open tbe case was properly one of practice, resting largely in tbe discretion of tbe court, and that tbe exercise of sucb discretion afforded no ground for a new trial or reversal of judgment, citing Marshall v. American Express Co., 7 Wis., 1, 18; Central Bank of Wisconsin v. St. John, 17 Wis., 157, 166; Fry v. Bennett, 28 N. Y., 824, 829 ; People v. Cook, 8 N. Y., 67, 77 ; Geach v. Ingall, 14 M. & W., 99.
   Lyow, J.

I. The defendants were clearly entitled to first introduce their proofs and to open and close the argument. The answers admitted every traversable averment of the complaint, and in the absence of any testimony, the plaintiff would have been entitled to judgment, upon the pleadings, for the amount of the note. The only issue was that made by the new matter stated "in the answers by way of avoidance, and the defendants bad the affirmative of that issue, and were entitled to all of the rights necessarily resulting therefrom.

Their claim in that behalf should, therefore, have been allowed. But it does not necessarily follow that, because the court erroneously denied such claim, tbe judgment must be reversed. In the case, of the Central Bank of Wisconsin v. St. John, 17 Wis., 157, the Chief Justice says, that a mistake in. this respect is no cause for a new trial, unless injustice is shown to have resulted from it, (p. 166). Such is, doubtless, the correct-rule. It cannot be reasonably inferred-from anything contained in the record of this case, that the defendants were in any manner prejudiced or injured by the . error complained of. It follows that the judgment should not be reversed because of such error.

II, Did the.court err by allowing the witness, Auer, to answer the question propounded to him on his direct examination, by the plaintiff’s counsel, as to whether the note in suit was entered in. the bill book of his firm, kept and produced by him, and after the witness had .testified that all notes discounted by his firm were entered therein ?

Before the question.eoncerning the contents of the bill book was put to the, witness, he had given testimony tending to show that his firm did not discount the note. The testimony elicited by that question was no part of the res gestae, and if admissible at all, it was only admissible because it tended to corroborate the witness, and thus to strengthen his testimony on the material point in issue in the action. The precise question to be determined is, therefore, whether, for the purpose of increasing or strengthening the credibility of a witness in the estimation of. the jury, the party calling him may show that such witness omitted to do certain things, which, had he done them, would tend to show that his testimony is untrue. The principle would doubtless be the same, were it proposed for the same' purpose, and under the same circumstances, to prove that the witness did certain acts, the doing of which was consistent "with his testimony. As, for example, had the proposition been to prove by the witness that about the time the note was discounted, he stated to divers persons that his firm did not discount it, but only acted as the agents of the defendant Herbst, in procuring the plaintiff to do so.

Of course, on cross-examination it is competent to interrogate tbe witness as to wbat be bas said or done or omitted to do, in regard to tbe transactions concerning wbicb be bas given testimony, and this for tbe purpose of laying a foundation for tbe introduction of impeaching testimony, should tbe witness testify untruly. But we know of no rule of evidence, and tbe learned counsel for tbe plaintiff bas failed to direct our attention to any such rule, wbicb permits a party on tbe direct examination of bis own witness, to show acts or omissions of tbe witness wbicb are not of tbe res gestae, merely for tbe purpose of strengthening bis testimony with tbe jury. 'Without multiplying illustrations, it is not difficult to foresee that tbe adoption of such a rule of evidence would lead to great inconveniences and even absurdities in practice, by opening a door for tbe introduction of numberless side issues in all litigated trials, wbicb are now excluded by tbe application of wholesome and logical rules.

We think that tbe testimony under consideration should have been rejected, and because we cannot say that tbe defendants were not injured by it, there must be a new trial.

It is urged by tbe counsel • for tbe plaintiff that bad not tbe question objected to been asked by them, tbe jury might have inferred that tbe note was entered in tbe bill book, greatly to tbe disadvantage of tbe plaintiff. I think that bad tbe learned counsel tendered tbe book to tbe opposing counsel for examination, and to be put in evidence by them if they thought proper to do so, tbe difficulty wbicb they suggest would have been obviated.

By the Court — Judgment reversed and venire de novo awarded.  