
    Garny, Respondent, vs. Katz, Appellant.
    
      December 19, 1894
    
    
      January 8, 1895.
    
    
      Instructions to jury: Credibility of witnessess: One party called by the other.
    
    1. A refusal to instruct tire jury “that the plaintiff, having called the defendant as a witness in his own behalf, holds him out as a witness worthy of credit,” was not error.
    2. Nor was it error to charge that “the fact that plaintiff called the defendant as his witness does not relieve the jury of its duty to weigh and consider the testimony of such witness in the case. It was perfectly proper for the plaintiff to put his adversary upon the stand, to obtain any testimony that he could by way of admission. ■ Such a witness lias an opportunity upon his own behalf on cross-examination. Plaintiff is not bound to hold out such a witness as worthy of credit as to everything he may testify to.”
    Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.
    
      Affirmed.
    
    This is an action by the plaintiff to recover commissions for services as a real-estate broker. The plaintiff claims that he had a tract of land to sell; that he proposed to sell it to the defendant; that the defendant promised him that if he should show it to him he would pay him $500 in case he found it a desirable investment and should buy it. The plaintiff showed the defendant the land. The defendant afterwards bought the land from another broker. The defendant denied that he made such a promise. That was the issue tried. Tbe testimony was, in tbe main, tbe testimony of tbe parties, wbo testified diametrically opposite to each other on tbe question in issue. Tbe verdict was for tbe plaintiff. From judgment on tbe verdict tbe defendant appeals.
    For tbe appellant there was a brief by Winkler, Flanders, Smith, Bottum & Vilas, and oral argument by J. G. Flmiders.
    
    
      G. G. Wooleoeh, for tbe respondent.
   NewmaN, J.

Ordinarily tbe court will not disturb tbe verdict of a jury on conflicting and contradictory testimony, where tbe issues have been fairly tried and are submitted fairly. This case is not exceptional. It comes fully within tbe rule. Tbe defendant bad tbe power and right to bind himself by tbe promise which tbe plaintiff claims that be made; and if be made tbe promise> be must perform it, for tbe plaintiff performed on bis part. What tbe plaintiff agreed to do and did do was ample consideration in law for The defendant’s promise. "Whether tbe testimony was credible and should be believed was for tbe jury.

Tbe defendant asked the court to instruct tbe jury “ that the plaintiff, having called tbe defendant as a witness in bis ■own behalf, bolds him out as a witness worthy of credit.” This instruction tbe court refused to give. No doubt tbe proposition contained in tbe proposed instruction, as applied to a situation to which it is applicable, was a correct proposition. But tbe consideration that tbe witness was produced by one party rather than tbe other was never deemed ,a criterion of tbe credibility of bis testimony or tbe weight to which it is entitled. It does not bear on tbe question of ■the credibility of bis testbnony that tbe party wbo produces him is held, for another purpose, to represent bim as a witness whose testimony is entitled to credence. Tbe purpose ‘of tbe rule is to protect tbe independence of tbe witness. It prevents tbe party producing tbe witness from impeaching .a witness whose testimony disappoints bis expectation. But the credit wbicb is due to bis testimony depends on bis character and intelligence, on ■ bis relation to and interest in tbe case, on bis manner of giving bis testimony, and on those considerations generally wbicb are applied to determine tbe proper credit due to the testimony of witnesses, and not at all upon tbe consideration wbicb party may produce him. In this case tbe giving of tbe instruction requested might, to tbe jury, have given tbe testimony of tbe defendant a factitious credit to wbicb it was. not justly entitled. Tbe jury might have understood it to be more noteworthy, or entitled to more credit, because of tbe fact that tbe plaintiff had called tbe witness, than if he-bad merely testified upon bis own behalf. Tbe refusal to give it was not error.

Tbe following instruction, excepted to by tbe defendant, seems to be in accord with tbe view above expressed: “ Tbe fact that tbe plaintiff called tbe defendant as bis witness does not relieve the jury of its duty to weigh and consider tbe testimony of such witness in tbe case. It was perfectly proper for tbe plaintiff to put bis adversary upon tbe stand, to obtain any testimony that be could by way of admission. Such a witness has an opportunity upon bis own behalf on cross-examination. Plaintiff is bot bound to bold out such a witness as worthy óf credit as to everything be may testify to.” There is no error in this. Tbe party producing tbe witness may always show tbe fact to be different from tbe statement of tbe witness. And the rule as to tbe bold-ing out of tbe witness as one worthy of credit does not apply in its full rigor where tbe adversary party is tbe witness-called. Tbe rule was established at a time when parties to actions were not competent witnesses. And tbe opposite party is often called from necessity rather than from choice-.

No reversible error is found in tbe record.

By the Gowrt.— Tbe judgment of tbe superior court of Milwaukee county is affirmed.  