Turner v. McIlhaney

Burnett, J., after stating the facts in the case, delivered the opinion of the Court—Terry, C. J., concurring. It is the general rule that a witness must state facts, and not opinions, inferences, or conclusions. The exceptions to this rule are few, and relate mostly, if not entirely, to the opinion of experts in reference to questions of science and skill. This, however, was not a case of that kind.

In answer to this point, the learned counsel for the defendant Hooper, insist that such testimony is admissible to prove partnership. “ A partnership,” they say, “ may be proved by common report or general reputation.” 2 Greenleaf, 483.

[579]But the authority referred to does not sustain the position taken. The learned author says :

“ But evidence of general reputation, or common report, of the existence of a partnership, is not admissible, except in corroboration of previous testimony; unless it be to prove the fact that the partnership, otherwise shown -to exist, was known to the plaintiff.”

It will be seen that common report can only be admitted for two purposes: First, in corroboration; and, second, to show knowledge on the part of the plaintiff. But in this case, the evidence was not offered for such a purpose, nor did the evidence itself relate to common report, but to the opinion or inference of the witness himself.

The question was improper at the time when put, but we think the error was cured by the testimony of the plaintiff in rebuttal, by which it was conclusively shown, by plaintiff’s own witness, that Hooper was not a partner at the time the notes were given. It has" often been held that a defect of proof may be supplied by the testimony introduced by the adverse party. The same principle will cure the error committed by the introduction of improper testimony, when the party objecting himself afterwards introduces proper evidence, clearly establishing the same fact. The true rule seems to be this : that when the jury, after excluding the improper testimony, could not have properly found a different verdict—and if they had, the Court should have granted a new trial—then the party objecting to the testimony is not injured.

The next point raised by the counsel of plaintiff relates to the admission of the deposition of Thomas, one of the defendants. This deposition had been taken by the plaintiff, and by him read on a former trial of this case." At the late trial, the deposition was read by the defendant, Hooper, and objected to by the plaintiff.