Alger v. Andrews & Baldwin

47 Vt. 238 | Vt. | 1875

The opinion of the court was delivered by

Barrett, J.

The principal benefit likely to be realized from the promulgation of a formal opinion in this case, would seem to result from making it the occasion of explicitly announcing, that the decision on the point on which the judgment was reversed in Hines v. Soule et al. 14 Vt. 99, has been overruled, and for many years has not been regarded by the bench and bar of this state as declaring the true law of the subject. In the opinion drawn up by Judge Bennett, it was made plain that, upon principle and authority, the admissions in question were proper to be given in evidence. It seems that he thought, also, that they might be proved by witnesses other than the person making them, even though such person should be living and able to be had in court as a witness on the trial. It seems that at the same time, his two associates, in the absence of Judge Royce, thought otherwise ; and so he yielded for the sake of the necessary unanimity, to enable the case to be decided. This was in 1842. A note to Reed v. Rice, 25 Vt. 177, shows that one of those associates, in 1853, had come to his opinion, as to the proof of such admissions by other witnesses than the person who made them. The decision in Hayward Rubber Co. v. Duncklee, 30 Vt. 29, shows that the same judge was, in 1856, agreeing with Judge Bennett on the other question, to the effect that “ admissions made by the assignor of a chattel or personal contract, prior to the assignment, and where the assignee must recover through the title of the assignor, and succeeds only to that title as it stood at the time of the transfer, bind the assignee.” In that case the defendant claimed to hold the property by attachment, as the creditor of the party whose admissions, made prior to said attachment, the plaintiffs gave in evidence, to show that the ownership was in them, and not in the defendant’s debtor. At the same term of.the court, the same doctrine was held as to admissions made by the assignor of notes and mortgage, as to payments having been made on them. See Miller v. Bingham et al. 29 Vt. 82. As to the proof of declarations or admissions by other witnesses than the person making them, Miller v. Wood et al. may be referred to, 44 Vt. 378. It will be seen that the point of exception in this case is identical with one point of exception and decision in Downs v. Belden, 46 Vt. 677. The court held that the evidence was properly admitted — the Ch. J. referring in the opinion to the cases of Miller v. Bingham, and Rubber Co. v. Duncklee, supra, as governing the subject.

It is not needful to enter into any discussion of the subject. 1 Phil. Ev. Cow. & Hill’s notes (5th Am. ed. 1868), note 104, p. 255, opens a wide field of learning.appertaining to it. Wo decide only the point as it is made, upon the facts in the present case, without entering upon the distinctions that have been taken, discussed, and adopted in some of the cases, between a purchaser and an assignee, and the like ; as, for instance, in Coit v. Howd, 1 Gray, 547. In the case in hand, the defendants claim to have received the property from Brown, as security, or in payment of a debt existing prior to the receiving of the property.

We think there is no ground for the point made in the argu ment, that the exceptions do not show that the declarations were made by Brown -before he transferred the sleigh to the defendants. Of course only such declarations or admissions would be legitimate to affect the title of the defendants. The excluding of the evidence of such declarations is deemed to have been erroneous.

Judgment reversed, and cause remanded.