Watrous v. Cunningham

Foote, C. This was an action-of claim and delivery for certain hogs.

The cause was tried by a jury,-and a verdict and judgment were had in favor of the defendant. From that judgment, and an order denying a new trial, the plaintiff has appealed.

The question asked the plaintiff when a witness upon the stand, “ What did you say in the office of Campbell and Muenter at that time?” was objected to by counsel, the objection overruled, and he assigns that for error.

This witness in his examination in chief said: “As soon as I found that the hogs were attached, I went to Mr. Campbell’s office to explain to them that the hogs were mine, and not to have any trouble about them, and that they had made a mistake.” Upon his cross-examination he stated without objection: “I remember being in Mr. Campbell’s office after the hogs were attached by Mr. McDougald. I did n’t state then in that office, in the presence of Mr. J. C. Campbell, W. D. Campbell, McDougald, and Judge A. V. Scanlan, that I had furnished' the money for the Chinaman to buy the hogs, and that he was to give me one fourth of the increase,” etc.

When a witness has related anything which he said at a certain time and place, and under a given state of facts, it is competent to have him state all that he uttered on such occasion.

[32]It is evident that the witness had made a statement at the time he was present in the office of. Campbell and Muenter, and unless he had been made to relate all that he then said, it would have appeared to the jury that he went there in good faith, and claimed the property as his own, and that it had been attached by mistake; that he had never made any other statement, and that such was all that he spoke upon that occasion.

Had the court not allowed that question to be put and answered, the defendant would have been deprived of his right to have the jury hear all that had been said upon a certain occasion, and would have permitted him to be bound by a part only of such statement or conversation. And the witness being a party to the suit, we think the question was a proper one, and that the court did not abuse its discretion in allowing it. (Neal v. Neal, 58 Cal. 287; Jackson v. F. R. Water Co., 14 Cal. 18; Thornton v. Hook, 36 Cal. 228; Harper v. Lamping, 33 Cal. 647.)

And if the question was not allowable upon the ground last mentioned, it was admissible for the reason that the counsel putting it, when it was objected to as improper, on cross-examination, stated that he claimed the right to ask it for the purpose of impeaching the witness, and no objection was then urged against that view of the matter. Hence any objection for that cause cannot now be urged here for the first time. (Stoddard v. Treadwell, 29 Cal. 281.)