
    Henkle v. McClure.
    1. Evidence must ba confined to the issue, and even for the purpose of corroborating the testimony of witnesses, an inquiry into facts entirely collateral, leading to a controversy over matters altogether foreign to the case before the court, can not be permitted.
    2. The effect of incompetent testimony once admitted, can not be done away with, except by such a charge to the jury as will enforce them to disregard it completely.
    Error to the District Court of Clark county.
    On appeal from a justice, McClure filed his petition in the Court of Common Pleas of Clarke county against Henkle, averring that defendant agreed to exchange with plaintiff, a wagon for ahorse, and pay the plaintiff $80 boot money; that the trade was made, the horse delivered to defendant and wagon to plaintiff, but defendant has never paid the boot mouey, and judgment is asked for the amount.
    Iu an amended answer, Henkle avers that he was owner of a wagon, and one Wesley Hedges bought it for the purpose of trading for plaintiff's horse, and Hedges did exchange the wagon for two horses of plaintiff; that defendant was present at the trade, but not a party to the contract, though by an arrangement between himself and Hedges, he agreed to purchase one of the horses from Hedges in case the trade was effected; all of which plaintiff, McClure, knew.
    Another defense and counterclaim is set up, which it is not necessary to consider.
    The verdict was for defendant, Henkle, and judgment thereon.
    A petition in error was filed in the district court, where the judgment of the common pleas was reversed. To reverse this judgment of the district court, a petition in error was filed in the supreme court.
    The journal entry shows that the district court founded its judgment upon errors in the first and sixth paragraphs of the bill of exceptions, which are as follows:
    
      “Par. I. The plaintiff) to maintain the issue on his part, offered testimony tending to prove that the plaintiff exchanged a horse with the defendant for a wagon, which the plaintiff alleged to belong at that time to the defendant; and that the defendant promised and agreed to pay him,the plaintiff, eighty dollars in said exchange, as the difference between the value of said horse and said wagon; and that the defendant took possession of said horse and the plaintiff took possession of said wagon under and by virtue of said alleged contract; and that the defendant retained possession of said horse for about two weeks thereafter, and that one, Wesley Hedges, said in the presence of the parties at the time of said exchange, that if defendant, Henkle, traded the said wagon for the one horse belonging to the plaintiff) he (Hedges) would buy a certain other horse belonging to the plaintiff, and that said Hedges did accordingly purchase plaintiff’s other horse and took possession thereof; and after the conclusion of the testimony on the part of the plaintiff) the defendant, to maintain the issue on his part, offered testimony tending to prove that he did not own the wagon aforesaid, and that he made no exchange with the plaintiff) but on the contrary, the said wagon belonged to said Hedges. That the said Hedges, himself, bought both of the said horses of the' plaintiff and gave him in exchange thereof the said wagon, leaving a balance in favor of the
    
      plaintiff, which was, by the terms of the agreement of said trade or exchange between said Hedges and plaintiff', to be applied in part payment of a debt which the said Hedges had against the plaintiff as the administrator of John McClure, deceased, who was a son of the plaintiff; and thereupon, the defendant, to further maintain the issue on his part, further offered to prove by said Wesley Hedges, who had already given testimony to prove all the matters aforesaid by defendant to maintain the issue on his part, that at the time of the alleged exchange and agreement for the payment of said indebtedness the estate of John McClure was, in fact, indebted to him, and that the plaintiff, his administrator and father, knew all about said indebtedness and admitted it, to which testimony of said Hedges, as to the existence of said indebtedness and the admission and knowledge of plaintiff' of the same, the plaintiff' objected, which objection was overruled by the court and the same permitted to go to the jury.” Exception was duly taken.
    
      “Par. VI. And the plaintiff' being recalled to give rebutting evidence, and in such examination having given evidence tending to prove that no indebtedness existed in favor .of Hedges against the estate of John McClure at the time of said exchange, and that it was not understood or admitted by Jhim at the time of said exchange that the said indebtedness existed, and that no such agreement was made by him with said Hedges for the payment of any such indebtedness, or any exchange or trade made with said Hedges, as claimed by the defendant from the evidence offered as hereinbefore stated, and having testified fully in reference thereto, to further maintain the issue on his part, the plaintiff called II. P. Willis and inquired of him whether the plaintiff', as administrator of the estate of said John McClure, had not paid certain claims to him existing against the firm of Hedges & McClure, and also offered by other witnesses to prove the payment of other claims against the firm of McClure & Hedges, which had been made by said Hedges in the name of the firm composed of the said deceased and Hedges, and offered, by testimony of said Willis and others, to prove in detail the state of the partnership and other accounts, between said Hedges and said deceased, to show the various items of account between them and the state of their mutual account as individuals, as well as co-partners, for the purpose of showing that upon a true adjustment of said accounts, no indebtedness, in fact, existed from the estate of said John McClure to said Hedges.” To all of which defendant objected, and the court sustained the objection, ruling out the evidence, because not material, but collateral and too remote. Exception was duly taken.
    The court, as to the question of the indebtedness of the estate of John McClure, deceased, to Wesley Hedges, charged the jury, in substance, that, “ whether such indebtedness existed or not was not of itself material in the case; that such indebtedness could not be investigated in detail or adjusted in this suit; that if such indebtedness existed, as claimed by the defendant, at the time of the trade, the plaintiff was under no obligations to pay the same by his own property; that if no such indebtedness was supposed or admitted by him to exist, or he did not desire to pay it in this way, it would be a circumstance tending to corroborate his claim; that he made no such bargain for its payment, as claimed by the defendant, and which they should consider in connection with the other evidence in determining the question ; but if, on the contrary, such indebtedness existed as was admitted by the plaintiff, and which he desired to pay, though he was not bound to do so, yet he might agree to pay the same by the sale of his own property, and if they found such to be the fact, it would be a circumstance tending to corroborate the testimony of said Hedges and the claim of the defendant, which they should consider in connection with the other evidence, for the purpose of determining whether such bargain was in fact made by him as claimed by the defendant; but, though such indebtedness existed, and was claimed by Hedges, yet, if the plaintiff did not admit it, or admitting, yet Avas unwilling to pay it in the manner it is claimed by the defendant to have been paid, such indebtedness would be no evidence tending to corroborate the making of such contract as is claimed by the defendant to have been made by the plaintiff.”
    
      S. A. Bowm.an, for plaintiff in error.
    
      Spence $ Auihur, for defendant in error.
   Wright, J.

The issue in the case was this: McClure claimed that he made the trade of a horse for a wagon with Plenkle, and Henkle was to pay him the boot which is sought to be recovered. Henkle claims that, though he was present, the trade was made, not with him, but with Hedges. The simple question, then is : With whom was the trade made? With Henkle or with Hedges?

Henkle, in order to throw the liability upon Hedges, offered to prove that the estate of John McClure was in fact indebted to Hedges, and that plaintiff, the administrator and father of John McClure, knew all about said indebtedness, admitted it, and the boot money was to offset it. The evidence as to the fact of this indebtedness was what ivas admitted against objection. The purpose of the testimony was this: Henkle wanted to show the likelihood of his story by showing that John McClure’s estate owed Hedges, and that Hedges wanted the boot money to go against this debt, thus paying himself; therefore it was probable that he made the trade, instead of Henkle, who had no such motive.

Doubtless it was competent to give in evidence what occurred at the trade. If Samuel McClure then admitted that his son’s estate owed Hedges, and agreed that such indebtedness should go against the boot money, this might be shown as being part of the agreement which was actually made, and by which the parties must abide. But when it comes to the further proposition that there was such a debt in point of fact existing, this we think entirely a collateral matter and foreign to the issue. Nothing of the kind is alluded to in the pleadings, and, if it were, we still can not see how it would be admissible. The point of controversy was : Did Hedges owe Samuel McClure ? And it does not tend to elucidate this matter by showing that John McClure’s estate owed Hedges. It would cull upon the court and jury to investigate the state of affairs between the McClure estate and Hedges, and thus the inquiry would proceed, not to the investigation of the case between plaintiff' and defendant, but between defendant and a third person not a party to the action. The trouble attending such a procedure is shown by the case before us. As soon as Hedges was allowed to show that John McClure’s estate did owe him, then the plaintiff proposed to go into the whole state of accounts between John McClure and Hedges, who had been in partnership, to prove that in point of fact no such indebtedness existed. The proposal involved not only the partnership, but also the individual accounts of McClure and Hedges. Such an investigation might be interminable, and was certainly irrelevant here. We are all of opinion, therefore, that the evidence as to- the fact of this alleged indebtedness was inadmissible.

But it is claimed that if the evidence was improperly admitted, the charge of the court did away -with any harm such admission might have occasioned.

The court did not squarely rule the evidence out, though they did say that, whether the indebtedness existed or not, was not of itself material in the case; but proceed further to say what might have misled the jury into believing that the fact itself might be corroborative of the claim of one party or the other, according as that fact was found to exist or not. It is stated that if no such indebtedness was supposed or admitted by him to exist, it would be a circumstance tending to corroborate his claim. Inasmuch as the court had allowed the evidence to be heard, and a vigorous contest had been made on the subject, the jury might have thought that if there had been no such debt, plaintiff could neither have supposed nor admitted its existence. They would naturally, therefore, consider the fact of the indebtedness as affording the shortest way out of the difficulty.

And, upon the other hand, it was said that if such indebtedness existed, was admitted by plaintiff, and he desired to pay it, this would tend to corroborate the defendant, Hedges. The fact of the indebtedness is here placed first in order of the facts, as seeming to be the one of chief importance, upon which all the others hinged, as upon the supposition of its existence, the further circumstances of its admission, and the desire to pay it, might seem to follow, when they would not upon a contrary hypothesis.

In conclusion, the court say: “ But though such indebtedness existed, and was claimed by Hedges, yet if the plaintiff' did not admit it, or, admitting, yet was unwilling to pay it in the manner it is claimed by the defendant to have been paid, such indebtedness would be no evidence tending to corroborate the making of such contract, as if claimed by the defendant to have been made by the plaintiff.”

It is true that this comes about as near to ruling the testimony out as can be done without actually doing it. But the fact that it was not actually done might have led the jury to suppose the reason therefor was sufficient. It is difficult to tell what effect evidence once admitted may have upon the triers of fact, but the impression made by hearing what the court has declared to be competent testimony can hardly be removed by anything short of a flat direction that it must be disregarded. Even then it can not always be known that tbe direction of the court is followed.

To a majority of the court it appears that the effect of the incompetent testimony was not dissipated by the charge of the court, and the judgment of the district court is affirmed.

Scott, J., dissenting.

I think the judgment of the court of common pleas should not have been reversed by the district court. The only error found by the majority of my brethren to have occurred upon the trial, and which they think justified the reversal of the judgment, is that the court permitted the witness, Hedges, to testify that at the time of making the contract in question the estate of the plaintiff's deceased son, of which the plaintiff was administrator, was indebted to the witness. If it be conceded that this evidence was improperly admitted, yet, under the charge of the court, it could not have prejudiced the defendant, and was in fact withdrawn from the consideration of the jury-

The judge clearly stated to the jury that the mere fact of such indebtedness was immaterial in the trial of the issues submitted to them. But that if the plaintiff, when the contract was entered into, admitted such indebtedness, and desired to pay the same by the sale of his own property, such facts, if found by them, might properly be considered in connection with the other evidence in the case, as tending to corroborate the testimony of Hedges and the claim of the defendant. The court said to the jury, speaking of the supposed indebtedness : “ Yet if the plaintiff did not admit it, or, admitting, yet was unwilling to pay it in the manner it is claimed by the defendant to have been paid, such indebtedness would be no evidence tending to corroborate the making of such contract as is claimed by the defendant to have been made by the plaintiff.” The jury was thus restricted to the consideration of the evidence bearing upon the terms of the contract, and the res gestee occurring at the time when it was entered into. Under such a charge, I can not conceive how the plaintiff below could have been prejudiced by the evidence complained of

Day, C. J., also dissented.  