ERROR — TRIAL—WITNESS.

[Hamilton Circuit Court,

January Term, 1893.]

Smith and Swing, JJ. (Cox, J., not sitting.)

#### †NATIONAL BENEFIT ASSOCIATION v. C. P. HARDING.

1. Exceptions to Overruling Motion for New Trial, Necessary for Review of Weight of Evidence, but not as to Rulings on Evidence.

Unless an exception be taken to the action of the court in overruling a motion for a new trial, a reviewing court will not consider the question whether the verdict was against the evidence. But in such case, exceptions taken at the time, to the rulings of the court admitting or rejecting evidence, may be considered.

2. Independent Evidence for Impeachment not Proper on Cross-Examination.

A party desiring to offer independent evidence with the view of impeaching the testimony of a witness of his adversary, can not do so during his cross examination of such witness, but must wait until the time arrives for him to offer his own evidence.

3. New Evidence .Given in rebuttal, subject to Surrebuttal.

New evidence, or evidence of new facts first offered by a party ih rebuttal, 'may after-wards be surrebutted by his adversary.

Error to the Court of Common Pleas of Hamilton county.

†

Cited in Sullivan v. Fogarty, 6 Ohio Dec., 130, 132.

.SMITH, J.

It is alleged by plaintiff in error that the court of common pleas erred, first, in overruling the motion for a new trial, based, among others, on the ground that the verdict was against the evidence; second, that the court erred in its rulings *669•as to the admission and rejection of evidence; and, third, in the charge given to the jury, and in refusing the charge asked for by plaintiff in error.

The petition of Harding contained two causes of action — one on a note purporting to ■have been given him by the defendant company, and the other to, recover $45.75 claimed to be due him as salary for services rendered to the company.

The answer contains, first, a general denial of each and every allegation not specifically ■admitted; second, denies that the note sued on was the note of the defendant company, but the individual and unauthorized act of Pinaire, who was the president of the association, ■and that plaintiff was advised and knew at the time he received it that it was given without •any authority; third, that the note was wholly without consideration; fourth, that when plaintiff was employed by the association it was agreed between them that he was only to receive such salary as there was money in the treasury of the association to pay it, and that it never had money in its treasury to pay it, and has ceased to do business. The reply is •substantially a general denial.

On the issues thus made a trial was had, and a verdict rendered against the defendant for •the amount claimed. A motion for a new trial was made by the defendant, which was overruled and judgment entered upon the verdict.

As no exception was taken to the ruling of the court as to the motion for a new trial, we cannot look at the question as to whether the verdict was against the -evidence. This was necessary to raise the question in this court. But as exceptions were properly taken to the rulings of the court as to the evidence, and the -charge given to the jury and -the charges refused, they can be considered, as it was not necessary that a motion for a new trial should have been made, that the defendant below might have the advantage of such exceptions.

First — -Was there error in the ruling of the court as to evidence? The first -exception taken was to the refusal of the court to allow the defendant below to •offer a deposition of the plaintiff- in this cause. The question arose in this way:

The plaintiff himself was introduced as a witness in his own behalf, and testified that he 'had loaned $100 to the association, and to the giving of the note sued on to him therefor, by Mr. Pinaire, the president, and to his having rendered services to the company, and that •there was a certain sum due him therefor. Thereupon, on the cross-examination, he was asked whether he had not in effect merely put the $100 into the company as the other members did, and not as a loan, and that the agreement between himself and the company was that^his services were only to be paid for if there was money in the treasury to pay it: and in answer the plaintiff denied both. His deposition taken in the case by the defendant was then shown him, and that he admitted that it was his deposition and that he had signed it. 'The defendant then offered it in evidence, but the court refused to receive it, but stated to counsel that he might interrogate the witness as to the statements of the deposition, and if the witness denied them, that the deposition might be received in evidence. This the •counsel for defendant declined to do, but again offered the paper in evidence; but the court declined still to allow it to go to the jury, and defendant’s counsel excepted.

The deposition so offered is attached to the bill of exceptions, and contained statements in regard to matters as to which the witness had testified on the stand, .and which might be claimed as contradictory thereto, and which .deposition was .admissible at some stage of the case as an admission by the plaintiff.

H the deposition so offered had been that of a person other than a party, it is •dear that the course suggested by the court to lay the foundation for an impeachment' of the witness was the proper one. Whether ir. such case, however, the party cross-examining him would have a right, at that time, to introduce the ■paper with a view to impeach the witness is questionable. We think not, av>d fu',f he should wait until his time comes to offer his evidence. Does the fact thai . was a party who was being examined alter the rule? We think this depends on the question whether it is legitimate cross-examination as to the case of the plaintiff, or whether it attempts to establish a substantial defense, set up by the defendant. If so, he must, under the authority of Drake v. Legg, 1 O. S., 286, wait until the time comes for him to introduce his own evidence. We think in this •case the defendant was seeking by the cross-examination of a witness in chief, to introduce its own evidence as to the substantial defenses set up by it, and that the •court did not err in its action.

*670P. A. Reece, for plaintiff in error.

F. B. James, for defendant in error.

The defendant, having subsequently offered evidence tending to prove that the $100 was not a loan, and that the note given therefor was executed long after the money was given to the company, by the president thereof, without authority,, the plaintiff, in rebuttal, called his wife as a witness, and he and she both testified, to a conversation in her room between the plaintiff and Pinaine, when others were-present, and at which it was in substance agreed that the $100 was to be a loan.. This was the first time that any suc-h conversation had been testified to. The defendant then sought to prove by Pinaire that there never was any such interview or conversation, but that the court refused to allow it to be done.

The evidence proposed to be offered by defendant was clearly rebutting evidence on its side. The evidence offered by plaintiff in rebuttal of defendant’s, case was relevant to the issue, and, as we have said, the testimony as to such conversation alleged to have been had between plaintiff and the officers of the company, first came out in plaintiff’s evidence. This the defendant had the right to. rebut. The only question that can be made is that the interrogatory put to the-witness called by plaintiff to rebut it, was too indefinite. He was asked what he knew <?f the interview testified to by plaintiff and his wife, and on objection by the plaintiff’s counsel, the defendant’s counsel stated to the court that he expected! to prove by the witness that no such interview took place. But the court still refused to hear the evidence. We think this made the question sufficiently definite, and that the evidence should have been received, and as it was on a material point, that the refusal was prejudicial.

The judgment will be reversed and a new trial awarded.