Opinion
Decided February 4, 1929.
Evidence — Party cannot impeach, but may contradict, own witness — Testimony contrary to prospective purchaser's, inadmissible as impeaching broker's own witness — And seeking to bind owner by third person's admissions.
1. A party cannot impeach his own witness, but he may contradict him.
2. In action by broker for commission, where broker called prospective purchaser as witness and he testified that he never told broker he would purchase property at price and upon terms specified in statement of claim, testimony of broker's brother that he heard purchaser tell broker he would take property at price and upon terms specified held inadmissible, because it tended to impeach broker's own witness.
3. In action by broker against owner for commission, where broker called prospective purchaser, who testified that he never told broker he would purchase property on terms specified, testimony of broker's brother that he had heard prospective purchaser tell broker he would take property on terms specified held inadmissible, since it sought to bind defendant by admissions or statements made by third person who was not party to suit.
4. Reviewing court cannot interfere with judgment of trial court on the ground that the same is contrary to the evidence, unless the judgment is manifestly against weight of evidence.
ERROR: Court of Appeals for Cuyahoga county.
Mr. Wilson Kern, for plaintiff in error.
Mr. Oscar J. Horn, for defendant in error.
The parties here stand in the same relative position as they did in the municipal court. In the plaintiff's amended statement of claim it is alleged that the defendant had engaged him to procure a purchaser for a brick block owned by the defendant in the city of Cleveland, and that the defendant agreed in writing to pay the plaintiff the regular rate of commission for the transaction; that the plaintiff accepted the employment and procured a purchaser ready, able, and willing to purchase the property at the price named by the defendant; that the purchaser had agreed to take the property at the price and upon the terms specified by the defendant.
The answer of defendant specifically denied the above allegations. The case was tried to the court without the intervention of a jury. The plaintiff was first put upon the witness stand, and he testified to the effect that he was employed by the defendant to procure a purchaser for the brick block at a certain price and upon certain terms; that he accepted the employment and procured a purchaser by the name of Charles Grega, who agreed to take the property in accordance with the price and terms specified by the defendant.
The plaintiff then called Charles Grega as a witness, and he testified that he never told the plaintiff that he would purchase the property on West Twenty-Fifth street at the price and upon the terms specified in the statement of claim. In other words, Charles Grega, the man named by the plaintiff as the purchaser, denied that he had any dealings with the plaintiff or that he had told him that he had agreed to buy the property.
The next witness placed on the witness stand by plaintiff was a brother of the plaintiff. He was called to testify that he heard Grega tell plaintiff that he would take the property at the price and upon the terms specified. Objection was made to this sort of testimony, which objection was sustained by the trial judge on the ground that the plaintiff was attempting to impeach his own witness. Exception was taken to the ruling of the court. The plaintiff then rested his case, and upon motion for judgment made by defendant, judgment was entered in favor of the defendant by the trial judge.
It is claimed by plaintiff in error that the court erred in excluding the testimony of plaintiff's brother. He quotes from 40 Cyc., 2766, as follows: "A party has a right to contradict his own witness by independent evidence showing the facts to be different from those testified to by such witness, although the incidental effect of the introduction of such evidence is to materially discredit the witness."
A long line of authorities is cited to show the distinction between a contradiction and an impeachment of a witness. It may be said to be generally settled that a party cannot impeach his own witness, but he may contradict him. Smith v. Smith, Sturgeon Co., 125 Mich. 234, 84 N.W. 144; Coulter v. American Merchants' Union Express Co., 56 N.Y. 585; Commonwealth v. Devaney, 182 Mass. 33, 64 N.E. 402; Rad, Jr., v. Gamble, 13 Ohio App. 488. Analyzing the character of the testimony sought to be given by the brother of the plaintiff, we come to the conclusion that it could have had no purpose other than to impeach the testimony of Grega. It must be kept in mind that Grega was not a party to this suit; that his statement or admissions made outside of the courtroom could not be testified to by any witness, on the ground that it is clearly hearsay: and that its introduction in evidence would be a patent violation of the rule against hearsay evidence. The only possible theory upon which this testimony could be offered is to show that the testimony which Grega gave upon the witness stand is not reliable for the reason that he, on another occasion, outside of the courtroom, made statements contradictory to those which he made upon the witness stand; and such testimony is nothing more or less than impeachment testimony. Whichever view we take, we must conclude that the trial court was right.
Both counsel seem to be agreed upon the principle that a party cannot be allowed to impeach his own witnesses, and it follows therefore that if this testimony offered to be given by plaintiff's brother was for the purpose of impeaching the testimony of Grega, the same was not admissible. On the other hand, if the purpose of the testimony of plaintiff's brother was to adduce evidence in addition to the testimony already given, it is very plain that such testimony is inadmissible for the reason that it seeks to bind the defendant by admissions or statements made by an outsider who is not a party to the suit.
The trial court heard the testimony introduced by the plaintiff. The defendant offered no testimony, but rested his case upon the evidence offered by the plaintiff. The witness who testified in the presence of the trial judge made certain impressions upon him, and the judge chose to believe one of plaintiff's witnesses in preference to the plaintiff himself.
A reviewing court cannot interfere with the judgment of the trial court on the ground that the same is contrary to the evidence, unless the judgment is manifestly against the weight of the evidence. We are unable to say that such is the case here.
The judgment of the municipal court will therefore be affirmed.
Judgment affirmed.
SULLIVAN, P.J., and VICKERY, J., concur.