#### Ely vs. Tesch.

Where the testimony of a witness for the plaintiff and that of the defendant were in direct conflict, and the former was supported by another witness, it was error for the court to instruct the jury that if they believed that the first two witnesses were entitled to equal credit, the testimony of the third “created a preponderance of testimony in favor of the plaintiff, unless there was some fact or evidence tending to corroborate the defendant.”

A judgment for the plaintiff should be reversed for such error, although the court also charged the jury generally that they were the exclusive judges of the credibility of witnesses.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Action brought by *Linus My*upon a note given by *Tesch*to William C. Ely and indorsed to tbe plaintiff, and an account for goods sold and delivered to *Tesch*by said William C. Ely, wbicb account bad been assigned to tbe plaintiff. *Tesch*answered, setting up an agreement in writing by wbicb William C. Ely, with tbe other creditors of said defendant, agreed to accept a conveyance of certain lands in full satisfaction of their debts. A copy of tbe agreement was annexed to and made a part of tbe answer. On tbe trial, tbe court decided that tbe defendant bad tbe affirmative of tbe issue. Tbe defendant *203then read in evidence an agreement signed by William C. Ely and bis other creditors, releasing him from all their claims on condition that he should cause to be made a conveyance to Jerome E. Brigham, his heirs, &e., of certain lands, to be held in trust by said Brigham for the use and benefit of said creditors. He also read in evidence a deed of said lands duly executed to Brigham, and a declaration of trust duly executed by the latter and recorded. The plaintiff read in evidence a deposition of William C. Ely, who testified in substance that *Tesch*applied to him, at his place of business in the state of New York, to sign an agreement similar to that produced by him in evidence, but which he represented as providing for a conveyance of the lands to Thomas A. Green as trustee, to which deponent agreed; that *Tesch*read the agreement to him while one Salsbury, deponent’s book-keeper, looked over a copy of said agreement previously forwarded to the deponent by Tesch; that said copy and the original as read by *Tesch*to deponent contained the name of Thomas A. Green as trustee, and deponent signed it with that understanding; and that there was no agreement or understanding of any kind between him and *Tesch*in reference to substituting the name of any other person as trustee in place of said Green. The plaintiff tben called said Salsbury as a witness, who testified to the same facts. The defendant, as a witness in his own behalf, then testified as follows: “ In the places where the name ‘ Jerome E. Brigham ’ appears in this original agreement, there was first written ‘ Thomas A. Green ’ with lead pencil. The attention of William 0. Ely was called to that fact. I stated to him that the paper had been drawn up in New York city by my largest creditors, and they had suggested the name of Thomas A. Green, and not knowing whether he would accept,-his name was written in pencil, and it was understood that if Green refused to act he was to nominate some other person, and his name was to be rubbed out, and the name of such person inserted. This I explained to Mr. Ely before he signed the pa*204per, and he consented to it. When I came home, I toot the paper to Mr. Green; he refused to act as trustee, and I told him he was to nominate a trustee. He nominated Jerome R. Brigham, whose name was thereupon inserted.”

There was some evidence as to how much time elapsed after William C. Ely was notified of the fact that the contemplated conveyance was made to Brigham as trustee, before he objected ; but it is not necessary to state that evidence here, or the rulings of the court upon it.

The court instructed the jury “ that they were the exclusive judges in regard to the credibility of witnesses; that the great question at issue between the parties was, whether the alteration in the agreement signed by William C. Ely was made with his consent; that if it was understood at the time the same was executed by Ely, that in case Green would not act as trustee he should select some other person for that purpose, and Green-did refuse and select Brigham, then the jury must find for the defendant; but if there was no such understanding, and the change of name was made without Ely’s knowledge or consent, and was not subsequently ratified by him, the plaintiff was entitled to a verdict.” At the request of the plaintiff the court further instructedjhe jury as follows : “ 1. If you believe the defendant and William C. Ely are equally entitled to credit, then the testimony of Salsbury creates a preponderance of testimony in favor of the plaintiff, unless there is some fact or evidence tending to corroborate the defendant 2. If you find from the evidence that the agreement, when signed, contained, as read and written, the name of Thomas A. Green, and this was afterward changed for that of Brigham without the knowledge or consent of William C. Ely, then, notwithstanding the fact that said Ely afterwards wrote to Green inquiring what kind of a man Brigham was, and merely remained silent thereafter, doing no act and saying no word, the plaintiff is entitled to a verdict.” The court refused to give the jury the following instructions asked by the de*205fendant: “1. The agreement introduced in evidence, between *John H. Tesch*and bis creditors, including William C. Ely, is proof that said agreement was so signed or executed Tjy William C. Ely, unless he shall deny the signing or execution by his oath or affidavit. 2. If the jury find from the evidence that William 0. Ely executed the said agreement, and that in pursuance of that agreement the defendant caused to be executed a conveyance of the land- mentioned in the agreement to Jerome R. Brigham, the person named in said agreement, then the plaintiff is not entitled to recover in this action.” Exceptions were duly taken by the defendant to the giving of the instructions asked for by the plaintiff, and the refusal of those asked for by himself.

Verdict for the plaintiff; motion for a new trial denied; and judgment upon the verdict; from which the defendant appealed.

*Finches, Lynde & Miller,*for appellant,

to the point that the first instruction given at the request of the plaintiff was erroneous, cited *Schneer v. hemp,*17 Mo., 142 ; *Clement v. McConnel,*14 Ill., 154; *Noland v. The State,*19 Ohio, 131; *Moffit v. dressier,*8 Clarke (Iowa), 122; *Dunlap v. Hearn,*37 Miss., 471 ; *Letton v. Young,*2 Met. (Ky.), 558 ; *Firemen's Ins. Co. v. Walden,*12 Johns., 518; *Morton v. Fairbanks,*11 Pick., 368 ; *Has-kins v. Haskins,*9 Gray, 391; *Aylwin v. Dimer,*12 Mass., 24; *Ware v. Hill,*1 B. Mon., 290; *Dowdell v. Neal,*10 Ga., 148; *Allen v. Kopman,*2 Dana, 221; *McGregor v. Armill,*2 Clarke (Iowa), 30.

*Mat. H. Carpenter,*for respondent:

There was no attempt to impeach Salsbury; he was entirely disinterested; and the court says to the jury, “ you are the exclusive judges of the credibility of witnesses; but if the testimony of A is diametrically opposite to that of B, and they are entitled to *equal credit,*then a third disinterested unimpeach-ed witness, swearing with A and against B, creates a preponderance of testimony in favor of the story of A, unless there *206is some circumstance or evidence tending to corroborate B.” This left the whole question to the jury fairly and properly.

*By the*Court,

PAINE, J.

We can see no error that occurred on the trial, unless it may be found in the instruction given to the jury, that “ if they believed the defendant and William C. Ely were entitled to equal credit, then the testimony of Sals-bury -created a preponderance of testimony in favor of the plaintiff, unless there was some fact or evidence tending to corroborate the defendant.”

It is obvious that this would be erroneous except for, the qualification at its close. Eor it is not proper for a court to say to a jury that when one witness testifies on one side and another on the opposite side, and the two are equally credible the testimony of a third necessarily creates a preponderance on either side. The witness might exhibit such incapacity or prejudice, or want of memory, that the jury might regard him as wholly unworthy of belief. Upon this point the jury are the judges, and they should be left free to exercise their judgment without beiDg trammelled by any instruction from the court that they might suppose binding upon them. What effect then should the qualification at the close of the instruction have upon it? The judge told the jury that the testimony of Salsbury created a preponderance “ unless there was some fact or evidence tending to corroborate the defendant.” Now evidence or facts tending to corroborate the testimony of a witness, would be only such as went affirmatively to give support to his statements. That which went merely to lessen the credibility of a witness who had contradicted him, could not properly be said to corroborate his own evidence. His testimony would still be left without any additional strength. This instruction, therefore, would seem to require the jury, if they believed *Tesch*and William Ely entitled to equal credit, to find for the plaintiffbecause he-had an additional witness, unless the defendant could point to some evidence tending to give *207affirmative support to bis statements, so as to counterbalance the supposed effect of Salsbury. And this would exclude all the elements in the testimony of such third witness itself which might go to show him unworthy of credit.

And the very design of the plaintiff in asking such an instruction as this, must have been to obtain from the court something that would impress upon the jury that it was their duty to follow the testimony of two witnesses rather than that of one. The main object was to establish the superiority of mere numbers. And although an attempt was made to qualify the proposition, yet we think, as before shown, that the qualification was not sufficiently broad to prevent the instruction from leaving upon the minds of the jury an undue impression as to the importance of the fact that there were two witnesses against one.

.It is true that the court did, in the course of its charge, tell the jury “they were the exclusive judges of the credibility of witnesses.” But a special instruction upon a particular point, applied by its terms to specific facts in the case, would naturally strike the attention of the jury more forcibly, and be allowed more weight, than a mere general statement. And where there is error in such special instruction, the judgment should be reversed, although there may have been something in the general charge tending to correct it, unless the appellate court can see clearly that the result could not properly have been different. In this case the question in issue was one de- . pending so entirely upon the credibility of the witnesses and the inherent probability or improbability of their respective statements, that it should be determined by a jury under proper instructions.

The cases cited by the appellant show how careful courts have been to avoid trenching upon the province of the jury to determine questions of fact.

The judgment must be reversed, and a new trial ordered.