Amer v. Hightower

Belcher, C. C. This is an action to recover the possession of certain personal property, or its value in case a delivery cannot be had, and damages for its detention. The answers deny all the allegations in the complaint.

At the trial, the plaintiff was called as a witness, and testified in his own behalf. He was then asked, on cross-examination, if he had ever made a bill of sale of the property described in the complaint, and answered that he had. The bill of sale was shown to him, and he said “ he signed it, but it was got out of him by lying.” The bill of sale was then offered by the defendants, and received in evidence, the material parts of it reading as follows: —

“In consideration of the sum of $2,055 to me in hand paid by B,. F. Hightower, I do hereby sell and deliver to him,” etc. (describing property).

“ In witness whereof I have hereunto set my hand this eighteenth day of September, 1884. John Amer.”

On redirect examination, the witness was asked to state all the circumstances under which he gave the bill of sale.

Counsel for defendants objected to the question, upon the ground that it was incompetent, irrelevant, and immaterial under the pleadings; that no fraud having been alleged in the complaint, and this being an action at law, the plaintiff was bound by the wording and language of the bill of sale, and could not vary, alter, or modify it by parol testimony.

Counsel for plaintiff then offered to prove by this witness and others that the bill of sale was obtained from plaintiff by fraud, falsehood, and deceit on the part of Hightower and others; that no consideration had been paid for it; that he had never delivered the property, or any part of it, to Hightower, or any one else; that after discovering the fraud practiced upon him, he immediately demanded that the bill of sale be returned to him, and refused to deliver the property; that Hightower [442]promised to return the bill of sale, but failed to do so, and that he took the property from plaintiff’s possession without his knowledge or consent; and that the other defendants were at all times fully aware and cognizant of all the facts of fraud and deceit under which the bill of sale and possession of the property were obtained by Hightower.

The court sustained the objection, and refused to allow any such testimony in the case, and the plaintiff duly excepted.