Emma E. Sparrowhawk, Respondent, v. Alexander Sparrowhawk, Appellant

Emma E. Sparrowhawk, Respondent, v. Alexander Sparrowhawk, Appellant. (Argued February 22, 1878; decided March 19, 1878.) This action was brought to recover for the alleged conversion of a piano, which plaintiff claimed to have been given to her by defendant. Upon the trial a witness testified on behalf of the plaintiff that she had a conversation with defendant in reference to the piano, in which he said the piano was the plaintiff’s, that he bought it for her and gave it to her as a present; that he said this more than once ; that defendant, his wife, and she thought Andrew Sparrowhawk, defendant’s son, were present. Defendant thereafter called Andrew Sparrowhawk as a witness, who testified that he was present when the piano was put up, that nothing was then said by defendant to plaintiff about his making her a present of the piano ; that he had heard what the former' witness testified to, and was never present at any such conversation. Upon his cross-examination he was asked if he had not told one Gardner, at a time and place specified, that his father told him that he had -given the piano to plaintiff. He answered that he had not. Plaintiff then called Gardner as a witness, who testified that Andrew did tell him at the time and place specified that his father had told him that he had given the piano to plaintiff. This was objected to as immaterial and incompetent, and received under objection and exception. Held, no error ; that, while the question was a border one, yet that the evidence may have related to the same conversation about which Andrew had testified, and certainly it bore upon the subject-matter of his testimony, and tended to contradict his evidence, and so was competent. Leslie W. Russell for appellant. B. H. Vary for respondent. [MAJORITY — Miller, J.,] Miller, J., reads for affirmance. Church, Ch. J., Rapallo and Andrews, JJ., concur. Allen, Folger and Earl, JJ., dissent. Judgment affirmed.