William A. Smith, Respondent, v. Ephraim N. Hart, Appellant

William A. Smith, Respondent, v. Ephraim N. Hart, Appellant. (Submitted June 12, 1874; decided June 19, 1874.) This action was brought to recover for a quantity of milk alleged to have been sold and delivered by plaintiff to defendant. The defence was that the milk was sold to one Deyo, for whom defendant acted as agent. The plaintiff, anticipating the defence, called Deyo as a witness, who testified that he received the milk upon a contract between him and defendant, by which the latter agreed to furnish him, at a stipulated price, all the milk he required in his business, and that he did not purchase the milk of plaintiff, or authorize defendant so to do on his account. On cross-examination, Deyo was asked, whether, as a witness in a suit brought by other parties against defendant, he stated the indebtedness between himself and defendant, and whether, in that statement, he credited the latter with the milk received from plaintiff. Deyo answered that he was sworn and examined in the suit referred to, in respect to the indebtedness, and did credit defendant with the milk. Upon the defence, the defendant, as a witness, was asked whether, in the suit referred to, Deyo credited him with plaintiff’s milk, or whether it was in any manner brought into the account between him and Deyo. This was objected to, and excluded by the referee. Held, error; that defendant was not concluded by the denial of the witness, as the evidence offered was of statements made elsewhere, inconsistent with his testimony upon a material point. E. F. Bullard for the appellant. F. H. Bryan and James Lansing for the respondent. [MAJORITY — Andrews, J.,] Andrews, J., reads for reversal and new trial. All concur. Judgment reversed.