
    FREDERICK SPEYER and Another, Plaintiffs and Respondents, v. JOSEPH STERN, Defendant and Appellant.
    
      [Decided June 30, 1870.]
    The contents of every writing are tobe proved T>y the paper itself and by that alone9 if the paper he in existence.
    Therefore, in cross-examining a witness, a party will not be allowed to represent in a question the supposed contents of a written deposition, or examination, and then ask the witness if he had testified thus.
    A party may exhibit the writing to the witness and by pertinent questions call his attention specifically to the same or any part thereof, and inquire as to Ms signature or the execution of the same by him, etc.
    If the execution is admitted, the party may at a proper time read the same in eví- | dence, or if its execution is denied, it may be proved and read in evidence at the proper time for the purpose of contradicting the testimony of the witness given at the trial. Theproper time9 as a general rule, is when the party offering the same in evidence is conducting the case, and not upon the cross-examination.
    At no time, however, can a party compel a witness to answer a question, nor upon • objection be permitted to have one answered, wMch contains or sets forth substantially any portion of the subject-matter of the writing. The writing itself is Mgher evidence of its contents than the statements of the witness in relation thereto.
    After a party has rested Ms case, whether for the prosecution or the defense, he cannot de jure ” introduce any testimony afterwards except what is clearly in answer or rebuttal of evidence introduced by the opposite party, before the party offering the testimony had resumed the case.
    A defendant, to avail himself of an exception to the refusal of the court to allow Mm to introduce certain testimony offered, must have offered the same before he rested the ! defense, or it must clearly appear that the testimony offered was in answer or rebuttal j to the evidence of the plaintiff introduced after he (plaintiff) had resumed the case. \
    
    Before Barbour, C.J., Freedman and Spencer, JJ.
    The complaint in this action claims to recover $644.48 for goods, wares, and merchandise sold and delivered by plaintiffs to defendant in October, 1867. The answer is a simple denial of the allegations of the complaint, and issue was joined in the action September 24,1868.
    On motion of defendant, 'Abraham Speyer, one of the plaintiffs, was examined before the trial as a witness, and his deposition filed pursuant to sections 390, 391, 392, of the Code.
    The cause came on for trial before Mr. Justice Jones and a j™7-
    It appears from the case that the goods in question were selected or ordered by one Israel Stern, a brother of the defendant, and who was trading in Vermont; that the trade between the parties commenced in the fall of I860, and continued to the fall of 1867, the bills for the goods in question being the latest and dated in October, 1867. Plaintiffs claim that the defendant bought these goods and promised to pay for them, and they were delivered to him; that the trade was opened and continued by him; that they never knew Israel Stern in the premises except as the agent of the defendant.
    The defendant claims that he never bought any goods of plaintiffs through Israel Stern or otherwise; that he never opened or continued any trade with plaintiffs; that the goods in question were sold and delivered to Israel Stern by the plaintiffs without authority or interference on his part, etc.
    On the trial the plaintiffs called as their first witness, to maintain the issues on their part, Abraham Speyer, one of the plaintiffs, who was sworn and testified in chief. The important portion of the testimony of this witness is contained in the following questions and answers:
    
      Q. Did you ever have a conversation with Joseph Stern, this defendant, in respect to Israel Stern selecting goods, and Joseph Stern buying them, and they being charged to Joseph Stern ?
    
      A. Yes, sir.
    
      Q. When was that.?
    
      A. In the fall of 1865, Mr. Joseph Stern brought in his brother and introduced him to me, saying to me that he might select all the goods he wants, and he is going to pay for them; from that day we sold goods right on.
    
      Q. From 1865 down to 1867 did you, from time to time, sell and deliver goods to Joseph Stern ?
    
      A. Right along; I had no other name but Joseph Stem.
    
      
      Q. Did Israel Stern, from time to time, down to and during this period, come in and buy goods in the name of Joseph Stem ?
    
      A. Yes, sir.
    
      Q. Were they shipped in the name of Joseph Stern ?
    
      A. They were shipped in the name of Joseph Stem.
    
      Q. And invariably charged to him ?
    
      A. Yes, sir.°
    
      Q. You received your pay in the name of Joseph Stern ?
    
      A. Yes, sir.
    At the close of the examination in chief, which terminated as above, the defendant’s counsel cross-examined the witness at some length, which cross-examination terminated as follows :
    
      Q. You don’t know whether he said Israel Stern wanted to buy goods of you ?
    
      A. I don’t remember.
    
      Q. That was before you had any dealings with him ?
    
      A. I don’t remember.
    
      Q. You have been examined in this case ?
    
      A. Yes, sir.
    [Defendant’s counsel hereupon showed the witness his examination in this action, taken before trial, on the 20th day of October and 12th day of November, 1868, and duly sworn to before Chief-Justice Barbour on the 12th day of November,' 1868; and defendant’s counsel asked the witness the following questions:]
    
      Q. In speaking of this interview in 1865, when you say his brother told you to sell goods; on your own examination of this case, did you testify as follows:
    “ Q. Did the defendant ever request or authorize you to sell and- deliver any goods to his brother, on the defendant’s account?”
    
      “A. He did.”
    “ Q. State the particulars.”
    “ A. The defendant came with his brother to my store, and requested me to sell his brother goods, and he would see me paid for it.” .
    
      
      Q. Did you testify to that in this case %
    
    [This question was objected to by plaintiffs’ counsel. The court sustained the objection, and refused to allow the question to be answered; to which decision counsel for defendant then and there duly excepted.
    The counsel for defendant thereupon stated that he pressed the question for the purpose of contradicting the testimony of this witness given on the trial. The court refused to allow the question to be answered, upon the ground that where a witness had been examined before trial, the testimony so taken could not be used on the trial to contradict his oral evidence. To this decision counsel for defendant then and there duly excepted.]
    
      Q. Did you state on that examination, in substance, that that was all the defendant said on that occasion ?
    [This question was objected to by plaintiffs’ counsel. The objection was sustained by the court, to which defendant’s counsel then and there duly excepted.]
    
      Q. How do you remember the precise amounts of the bill, on this day, in 1867 ?
    
      A. I can remember by my books; I can show.
    
      Q. Did you make the entries at the time %
    
    
      A. I did not.
    
      Q, Who did?
    
      A. Hy book-keeper.
    
      Q. You have no other recollection than that those things are entered on your books ?
    
      A. I suppose so.
    
      Q. That is all you know \
    
    
      A. That is all I know.
    
      Q. And you did not make the entries %
    
    
      A. I did not.
    
      Be-dweot examination by plaintiffs’ counsel:
    
      Q. Do you recollect, independent of the books, the fact of selling goods on this date and to that amount ?
    
      A. I do.
    
      Q. What is the amount of those goods %
    
    
      [Witness referred to a memorandum.]
    After the plaintiffs rested, Joseph Stern, the defendant, was called as a witness in his own behalf, and his testimony was in direct conflict with that of said plaintiff, Abraham Speyer.
    The defendant’s counsel, after the examination of Joseph Stern and one other witness, rested on the part of the defense, and plaintiffs resumed, and after recalling and re-examining Abraham Speyer and Lewis Adler, also rested, and the defendant’s counsel resuming the defense, the following proceedings were had.
    The plaintiffs having rested their case, Joseph Stern (the defendant), being recalled on his own behalf, testified as follows:
    
      Q. Did you at any time authorize your brother to buy any goods whatever of the plaintiffs, the Messrs. Speyer %
    
    [This question was objected to by plaintiffs’ counsel. The objection was sustained by the court; to which defendant then and there duly excepted.]
    [Counsel for defendant hereupon offered in evidence the entire examination of the plaintiff, Abraham Speyer, taken before trial, on behalf of defendant. This was objected to by plaintiffs. The objection was sustained, on the ground that the witness had been examined on the trial, and therefore his examination taken before trial was inadmissible; to which decision counsel for defendant then and there duly excepted.]
    Defendant hereupon rested.
    This case contains all the evidence taken on the trial.
    The case was summed up by the respective counsel for the plaintiffs and the defendant.
    The counsel for the defendant asked the court to charge that:
    “Upon the testimony of Abraham Speyer no more than a guarantee is proved, and therefore the plaintiffs cannot recover.”
    [The court declined to charge this proposition; to which counsel for defendant then and there duly excepted.]
    Counsel for defendant thereupon requested the court to charge the jury that:
    
      “ If in 1865 the defendant and Abraham Speyer had the conversation testified to by Abraham Speyer, that would only be an authorization extending to a single purchase, and therefore the plaintiffs cannot recover.”
    [The court refused to charge this proposition; to which counsel for defendant then and there duly excepted.]
    The court thereupon charged the jury, to which charge there was no exception except as above stated. Subsequently the jury rendered a verdict for $698.35, and the defendant moved before said justice to set aside the verdict and grant a new trial upon the exceptions and for insufficient evidence, and that the verdict was against the evidence, which motion was denied.
    ■ The appeal is from the judgment entered upon said verdict, and the order denying the motion of defendant for a new trial.
    
      Mr. Henry L. Clinton for appellant.
    The verdict is so clearly and palpably against the weight of evidence, that it should on that account be set aside.
    Plaintiff Speyer and defendant in their evidence flatly contradict each other as to the conversation on which plaintiffs sought to make defendant liable for goods sold his brother.
    The court erred in refusing to charge the jury the proposition that, “ If in 1865 the defendant and Abraham Speyer had the conversation testified to by Abraham Speyer, that would only be an authorization extending to a single purchase, and therefore the plaintiff cannot recover.”
    The court erred in refusing to allow defendant’s counsel to contradict the testimony of plaintiff, Abraham Speyer, respecting the conversation between him and the defendant (on which it was sought to make defendant liable in this action), by reading from the examination of the plaintiff, Abraham Speyer, taken by defendant before trial.
    Clearly the court erred in refusing to allow defendant to put in evidence the entire examination of plaintiff, Abraham Speyer, taken before trial on behalf of defendant. The court refused to allow this examination to be given in evidence on the ground that the witness had been examined on the trial.
    There may be good reasons for holding that the plaintiff could not read in evidence in his own behalf his own examination taken before trial, and at the same time testify orally for himself; but there can be no good reason for holding that the plaintiff by testifying orally can deprive the defendant of his right to introduce in evidence against him (plaintiff) his examination taken before trial.
    
      Mr. Du Bois Smith for respondent.
    The examination of a party taken at the instance of his adversary is not admissible to contradict his testimony given on the trial, and, when he is present thereon, cannot be read.
    This examination is authorized by section 391 of the Code, which provides that a party to an action may be examined at the instance of the adverse .party, subject to the same rules of examination as any other witness, to testify either at the trial, or conditionally, or upon commission.
    The examination offered to contradict the witness did not substantially vary from his evidence given on the trial.
   By the Court:

Spencer, J.

The verdict of the jury upon this conflict of testimony should not be disturbed or set aside, as against the weight of evidence, nor do I think the court erred in refusing to charge the jury as requested by defendant’s counsel.

There are two other rulings or points in this case claimed as error by the defendant.

First.—That the court erred in refusing to allow this question to be answered (after defendant’s counsel had read a portion of the examination or deposition of the witness taken before the trial on the part of the defendant): Did you testify to that in this case ?

Although I cannot agree with the learned judge who presided at the trial in the grounds of his refusal to allow this question to be answered (after objection), I hold that his ruling was correct, for the following reasons:

That the contents of every writing are (according to the ordinary and well established rules of evidence) to be proved by the yya/per itself a/nd by that alone, if the paper be in existence.

That in cross-examining a witness a party should not be allowed to represent in a question the contents of a written deposition or examination, and to ask the witness if he testified thus.

A party may exhibit the writing to the witness, and by pertinent questions call his attention specifically to the same or any part thereof, and inquire as to his signature or his execution of the same, etc. (So far as defendant’s counsel pursued this course he was not objected to or interrupted.)

If the witness admits its execution, the party, at a proper time, may read the same in evidence, or if the witness denies its execution, etc., the party may, at a proper time, prove and read the same in evidence for the purpose of contradicting the testimony of the witness given on the trial.

The proper time for reading the paper in evidence or proving the same is, as a general rule, at a time when the party offering the same is conducting the case, and not upon cross-examination, although circumstances may often justify the direction of the court for its introduction at other times.

But after the preliminary questions are asked, as above stated (and whether the witness admits the execution or not), a party cannot compel a witness to answer a question, nor, upon objection, will he be permitted to have one answered which contains or sets forth substantially any portion of the subject-matter of the writing. The examination itself was higher and better evidence of the facts or of the statements made by the witness.

In support of the foregoing positions, see Phillips on Ev. (6 Am. ed.) vol. 2, page 437; Starkie on Ev. (old ed.) vol. 1, 102; 2 Broderip & Bingham, 113, 115, 117; Bellinger v. The People (8 Wend., 596); Newcomb v. Griswold (24 N. Y. Rep., 298.)

Second.—Did the court err in refusing to allow the entire examination of Abraham Speyer to be read in evidence when offered ?

It does not appear from the case, as to the purpose or object of defendant’s counsel in offering this examination as evidence, nor does it appear that it was proved or identified, and as no copy appears in the case we are unable to judge whether the paper was, in itself, as certified by the judge who took the same, or by the clerk who filed it in this court, entitled to be admitted and read in evidence, so far as authenticity or identity was concerned, and we cannot presume anything for or against it, or decide as to its materiality or importance to the case of defendant, if admitted. But there is another (and as I hold), a fatal objection to its reception for any reason at that stage of the trial.

It appears from the case that the plaintiff had rested and the defendant had likewise rested, and the plaintiff had resumed the case and recalled and re-examined some witnesses in rebuttal to the defendant’s case, and had finally rested. At this stage of the trial defendant’s counsel recalled defendant as a witness and asked him a question, which most clearly indicated a reopening or resumption of the defense on his part, instead of answering his the plaintiff’s rebuttal. On obj eetion, the court refused to allow the defendant to answer that question, and, as I hold, ruled very properly in the case. Then the defendant’s counsel “ offered in evidence the entire examination of the plaintiff, Abraham Speyer, taken before trial, on behalf of defendant.” On objection, the court refused to receive the same, and defendant excepted.

The defendant, to avail himself of an exception to the refusal of the court to allow this examination to be read in evidence, should have offered the same before he rested the defense.

The judgment should be affirmed, with costs of the appeal.  