Kelley v. Merrill , 14 Me. 228 ( 1837 )

After a continuance, the opinion of the Court was drawn up by

Shepley J.

The first objection to the ruling of the Judge at the trial, is to the admission in evidence of the answer of Staples, a witness for the plaintiff, to the fourth cross-iqterrogatory. The interrogatory is, “ if you know any thing further, favorable to the defendant, state it as if particularly interrogated.” The answer is a statement of matters quite unfavorable to the defence ; and the argument is, that it should be suppressed as impertinent and uncalled for by the question. Where a question is put, calling for an answer to a particular point, or inquiring whether a certain thing did or did not occur, the answer should respond to the question, and if it does not substantially do so, it is not to be received. The witness is not at liberty to evade the question, by stating what is clearly not called for. 1 Sum. 454, Alsop v. The Com. Ins. Co. This is the general interrogatory frequently put, but which is always put at some risk, as the party necessarily submits to the judgment of the witness, what may be thought favorable to him. The witness being sworn to testify to the whole truth, may feel under obligation, when a general question is thus put to him, to state whatever he has not already done, relative to the case. He may not wish to assume the responsibility of deciding, what may be favorable to one or the other of the parties ; and it may well be questioned, whether either party can impose upon him the task of deciding that question correctly, or being exposed to the charge of perjury for omitting to state a fact pertinent to the issue and well known to him. It imposes upon the Court also the duty of deciding whether testimony may be favorable to one party or the other; and it might frequently be a question of no little delicacy and difficulty. What influence testimony legally admitted may have, -whether favorable to one or the other party, is for the jury, where the issue is a matter of fact. The duty of the Court is performed by deciding what testimony is relative to the issue, and is otherwise legally admissible. If the party chooses to risk a general interrogatory, anti is disappointed in the answer, he cannot call upon the Court to relieve him, if the testimony be pertinent to the issue.

Another objection was to the answers of the same witness to the third direct interrogatory. The answers do not appear to be liable to the objection that they attempt to contradict, explain, or vary a written contract. What is said in relation to it must be regarded rather as describing it, than as contradicting, or varying it.

The plaintiff had been mate under Staples, with whom he made an adjustment of his wages up to January 21, 1832, when Staples ceased to be master. He was then requested by Whütredge, the defendant’s agent at Baltimore, to remain with the vessel and take charge of her in port; and he did so from that time to the 31st of March following, when Snow became master, and the plaintiff continued with him as mate. The shipping articles commencing on the 31st of March, that was the day originally designated by them as the time, when the wages of the plaintiff and others of the crew should commence. When the plaintiff was to be paid off he desired the 31st March to be erased, and the 21st Jan. to be substituted, so as to obtain his wages while acting as ship-keeper; and Snow consented to it and paid his wages for that period of time before he was master. The defendant filed the amount thus paid in set-off, and claimed to recover it back, on the ground that Snow had no power to consent to such an alteration, or to pay the money. The master is the owner’s agent for all purposes coming within the scope of his authority during the voyage. But he does’ not thereby become authorized to pay claims against his owners which do not accrue during the time while he has charge of the vessel. ' It cannot be supposed, that he would have any competent knowledge to enable him to act with judgment, and if he had, it is enough for the owners, that they trusted him for a limited time, and he cannot assume to extend his agency beyond the tune prescribed by his principal.

But although the objection may have been good, and may have been overruled, were not the instructions such, as occasioned substantial justice to be done between the parties ? Admitting the money to have been paid without authority, was the defendant upon the other testimony in the cause entitled to have it allowed in set-off against the plaintiff? ' It appears in the case, that the plaintiff actually and faithfully performed the service by the request of the defendant’s agent; and that he was justly entitled to the amount which Snow paid to him out of the defendant’s money without any competent authority. The defendant can recover it back only upon the principle, that in equity and good conscience he is entitled to do so. This ground wholly fails. Beside, to allow him to recover it back because paid without authority, would be only to subject him to a new suit; and to avoid circuity of action, the plaintiff being justly entitled to it, should be permitted to retain it. Justice having been done between the parties, there must be

Judgment on the verdict.