Jones v. Love

Burnett, J., delivered the opinion of the Court—Terry, C. J., and Field, J., concurring. This was an action to recover possession of certain mining-claims, and for damages. The plaintiffs had judgment, and the defendants appealed.

1. The first error assigned by defendants is, the Court erred in refusing to strike out the testimony of L. D. Paige. This witness gave testimony material to the issue. He was one of the original locators of plaintiffs’ claims, which consisted of nine claims, each one hundred feet square. The witness said : “ I sold out one claim to Jones, and one to Mears, and one and a half to Marley. I only sold my right, title, and interest, and that the boundaries were correct as I sold. I made a bill of sale in writing, to all I sold. I don’t think I warranted the boundaries in the bill, but merely showed the boundaries, and told them if they turned out not to be correct, I would make them right, and I still feel bound to do so.” The objection was upon the ground of interest. There was an issue between plaintiffs and defendants, as to the boundaries of the plaintiffs’ claims. The [70]parol promise of the witness, that he would make good'the boundaries of the claims, as represented by him, was no part of the contract; and he was not legally interested in the event of the suit. Had the suit failed, he could not have been made liable. The liability must be legal, not moral; and the consequent interest present, certain, and vested. (Code, §§ 392, 393.)

2. The second error assigned is, that the Court erred in allowing F. B. Fuller, one of the plaintiffs, to be examined as a witness. On the trial, the plaintiffs called and examined S. C. Woods, one of the defendants, for the sole jrarpose of proving the amount of gold taken by defendants from the ground in dispute. Upon cross-examination by the defendants, this witness proved the boundaries of the claims of plaintiffs, and certain admissions of two of the plaintiffs, whose names were not mentioned. The plaintiffs then offered the witness Fuller, in rebuttal of this new matter.

There was no error, it would seem, in this action of the Court. The testimony of Woods, upon his cross-examination, was to new matter, and not as to matter that would discharge, when his answer would charge, himself. His answers, during his examination-in-chief, if taken by themselves, would not charge him. He simply stated the amount of gold extracted by defendants, from the disputed mine. This, of itself, fixed upon him no liability. By his testimony, he did not concede the liability of the defendants, at all. • His testimony went only to the amount, and not to the right, of property. When a party testifies that he executed and delivered the promissory note described, he charges himself, and may show that he has since paid the note. The testimony of Woods, given on cross-examination, being new matter, the plaintiffs had the right to offer themselves, or any one of them, as witnesses, in rebuttal. (Code, § 421.)