Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 414
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414 MooDY & JAMISON V. GARDNER. [Term of
Opinion of the Court.
necessary to notice but one ground of their motion and assignment
It appears from a bill of exception, taken by appellants, that
the appellee, Gardner, who was a witness on the trial in his
own behalf, testified that he had procured from appellants'
bookkeeper a memorandum or statement of his account with
appellants, in order to make settlement with their cashier.
After exhibiting the account, he was allowed, over defendants'
objection, to show by his own declarations made to defendants'
cashier at the time of the settlement with the cashier, that defendants
owed him five hundred dollars more than he received
under the terms of the memorandum furnished him by the
clerk. The plaintiff was also allowed to prove the same facts
by the cashier. Defendants' objections to this evidence were
overruled, and they excepted.
We are of opinion that the court erred in admitting this
evidence. It was not permissible to the plaintiff to state, on
the direct examination, or prove by another, the particular
facts which he may have communicated to other persons on a
former occasion, when neither of the defendants was present.
His assertion of the fact to defendants' bookkeeper or cashier
was not evidence which could affect the defendants, and could
not be used for the purpose of giving additional strength to
the testimony of the witness on the trial before the jury. Evidence
of this character is excluded on the examination in chief,
but the rule does not apply to a case where the other party is
attempting to impeach the witness on cross-examination; it is
then a proper question, or when the fact is put in issue by the
other party, the former statement and what was said may be
shown. The rule excluding such testimony is confined to tle
examination in chief. The declaration of the plaintiff on any
former occasion had not been put in issue by defendants on
cross-examination or otherwise, at the time the plaintiff testified.
There was no controversy between the parties in regard
to the payment of twenty-five hundred dollars; it was admitted
by the plaintiff. The issue on the pleadings had respect to the
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/422/: accessed August 16, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .