Barber's Adm'r v. Bennett

| Vt. | Feb 15, 1886

The opinion of the court was delivered by

Royce, Ch. J.

This is an action of assumpsit in the common counts, and is prosecuted by Daniel J. Barber, as administrator of Elijah Barber. The defendant pleaded the general issue and five special pleas in bar; but as no question is made as to their form or sufficiency, or as to evidence applicable to them, it is unnecessary to particularly refer to them. We will first consider the exception taken to the admission of “Exhibit A” as evidence.

To understand the objections made to its admission it is necessary to consider the character of the exhibit and the circumstances under which it was offered as evidence. The exhibit was a loose strip of paper upon which entries were made of many of the disputed items embraced in the claims made against the defendant, commencing October 6, 1866, and ending. January 1, 1877, and amounting, with interest as there set down, to $3,286.70. The paper was presented by the administrator, who testified that it was in the handwriting of Elijah Barber, and was found by him in the desk of- said Elijah at his dwelling-house after his death; and that he could find no other book or account with the defendant among the papers of the said Elijah. Upon that evidence alone the court admitted the paper as evidence.

It was not shown, as in Bell v. McLeran, 3 Vt. 185" court="Vt." date_filed="1831-03-15" href="https://app.midpage.ai/document/bell-v-mcleran-6571261?utm_source=webapp" opinion_id="6571261">3 Vt. 185, that it was the custom of Elijah Barber to make charges in like manner, or that the charges were made at or about the time when the right to charge first accrued; and there was nothing, aside from the appearance of the paper, to indicate that the entries made upon it were original entries. It had been made apparent when the paper was offered that the items of claim specified upon it were disputed by the defendant; and the only purpose for which the paper could be used was as evidence to sustain the claim made by the plaintiff. It was not used for the purpose of refreshing the recollection of any witness called to testify in relation to the charges made thereon, or as corroborative of the evidence of any witness who had testified concerning them.

The question as to when and under what circumstances the books and accounts of a deceased person may be used as evidence has been much discussed ever since the case of Price v. The Earl of Torrington, reported in 1 Salk. 285. The decisions have not been harmonious, as will be seen by reference to the notes to that case found in 1 Smith Lead. Cas. 539, and what is said in 1 Phil. Ev. (7 ed.), beginning' on page 263. But it has generally been held that to lay the foundation for the admission of that kind of evidence, it must be shown that the entries were made in the usual course of business of the party making them, and at or about the time of the transaction to which they refer. This qualified right to use such evidence in favor of the party making the entries is in contravention of one of the primary rules of evidence, which forbids the manufacture of evidence by a party in his own favor. Chief Justice Parker, in Welsh v. Barrett, 15 Mass. 380, says, in speaking of the rule as thus stated, that it is founded in good sense and public convenience, and that what a man has actually done and committed to writing when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the jury.

That is as far as the common law rule of evidence has been relaxed, and as far as it can be, safely. It would be extremely dangerous to allow whatever memoranda a party may have made in his life-time upon loose pieces of paper to be used for the benefit of his estate, as evidence to prove the truth of the facts thereon stated. A memorandum is defined to be a. note to help the memory; and this paper, considered in connection with the - circumstances under which it was found, partakes of that character. It certainly was not an account so kept and proved as to be admissible as evidence. It has been uniformly held in this State that memoranda are not independent evidence in chief, even during the life-time of the party making them. Lapham v. Kelly, 35 Vt. 195" court="Vt." date_filed="1862-02-15" href="https://app.midpage.ai/document/lapham-v-kelly-6577376?utm_source=webapp" opinion_id="6577376">35 Vt. 195; Cross v. Bartholomew, 42 Vt. 206" court="Vt." date_filed="1869-08-15" href="https://app.midpage.ai/document/cross-v-bartholomew-6578876?utm_source=webapp" opinion_id="6578876">42 Vt. 206; Godding v. Orcutt, 44 Vt. 54" court="Vt." date_filed="1871-08-15" href="https://app.midpage.ai/document/godding-v-orcutt-6579334?utm_source=webapp" opinion_id="6579334">44 Vt. 54. The court erred in admitting the exhibit as evidence, and the error cannot be regarded as a harmless one. The jury might, and probably did consider the account, as it appeared on that exhibit, of the same value, as evidence, as they would any other account that Elijah Barber might have kept against the defendant; and th'eir verdict, under the charge of the court, may have been predicated upon that evidence.

The exception taken to the admission of the testimony of Daniel J. Barber as to what was said by Elijah Barber at the time he paid the money over to him, is not sustained. It was allowable as a part of the res gestee to show the purpose for which the money was paid, by the direction or declaration of the party paying it. Bank of Woodstock v. Clark, 25 Vt. 308" court="Vt." date_filed="1853-03-15" href="https://app.midpage.ai/document/bank-of-woodstock-v-clark-6575005?utm_source=webapp" opinion_id="6575005">25 Vt. 308; State v. Howard, 32 Vt. 380" court="Vt." date_filed="1859-11-15" href="https://app.midpage.ai/document/state-v-howard-6576799?utm_source=webapp" opinion_id="6576799">32 Vt. 380.

It was error to exclude the defendant’s account, kept on his book, with the Plunkett & Barber Manufacturing Company. The plaintiff’s evidence tended to show that said company had settled with the defendant, and in that settlement some of the items that were disputed by the defendant were embraced; and the books of the company were put in evidence to show such settlement. The defendant testified that he had kept a correct account of his dealings with the company, and offered his book upon which said account was kept as evidence tending to show that no such settlement was made. In our judgment it was admissible.

The defendant excepted to the admission of the deposition of William Holbrook for the reason that the name of the magistrate before whom it was to be taken was not stated in the citation. The name of the magistrate was sufficiently indicated in the citation, and the deposition was properly admitted.

There are no other errors apparent upon the record that would warrant a reversal of the judgment; but for those we have indicated, the judgment is reversed and cause remanded.