Barker v. Barker

16 N.H. 333 | Superior Court of New Hampshire | 1844

Gilchrist, J.

In contracts for the delivery of specific articles on demand, where no place is expressed, the usual residence of the obligor is the place of performance; and a demand there is in generaL a necessary preliminary to an action founded on such contract. Goodwin v. Holbrook, 4 Wend. 377; Barker v. Jones, 8 N. H. 413. But it is held to be competent for the parties verbally to agree to alter the terms of a written contract fixing the place. Robinson v. Batchelder, 4 N. H. 40; and therefore a fortiori may they in the same manner determine the place of performance, when the original agreement has omitted to do so.

It was therefore in this case a pertinent question whether any such supplemental agreement had been made by the parties. But there are questions as to the relevancy and the competency of the evidence bearing upon this point, produced and admitted at the trial.

One of these relates to the instructions given to the jury as to the offer made by the defendant at South Wolf borough, to deliver the articles at such of three places named as the holder of the note might elect, taken in connection with his subsequent election to receive them at Farming-ton.

The effect of this offer was an undertaking on the part of the defendant that if the holder of the note would elect between the three places named, the defendant would upon notice of such election and demand made deliver them accordingly. This proposition he now insists was one which was not binding upon him, for the reason that the creditor did not then and there signify his acceptance of it and make his election.

It was held in Morse v. Bellows, 7 N. H. 549, that the proposition in that ease though not accepted at the time, but acted upon within a period which was reasonable for the parties to take to perform the acts contemplated in the proposal, became by such action a contract clothed with legal consideration and perfected with the requisite conditions of mutuality.

It is not apparent that the proposition of the defendant-in the present case was of a different nature, or that it required to be accepted in formal terms the moment it was made.

It might not unreasonably be supposed that the parties intended to defer to fix the place, till the creditor should see fit, by making a demand, to limit the time for fulfilling the contract. However that may have been, we are disposed to consider the proposal as the court below considered it, as one that the creditor was entitled to a reasonable time to act upon, and are accordingly of the opinion that the ruling on that head was correct.

We also sustain the ruling of the court which was to the effect that the defendant protesting to Mr. Eastman upon demand made, that he would not pay the note at all, and making no objection to the place where he was called upon to perform, to all intents and purposes waived the demand which might upon the evidence have been found necessary for laying the foundation of this action.

Another exception relates to the admission of Hayes as a witness for the plaintiff. At the commencement of the suit he had a direct interest in it, having caused it to be brought for the benefit of an estate to which he stood in the threefold relation of administrator, sole heir, and principal ci’editor.

As administrator he had no interest in the suit. Those holding that trust are not competent witnesses in the suits which they bring in behalf of the estates of their intestates. But their exclusion is not upon the ground of interest in the principal matter of the controversy, but because they are parties to the record, and therefore liable personally for costs.

Such liability did not attach to the witness here, but to the nominal plaintiff who sued in his behalf, and who has released him from all claims for costs to which he may consequentially become liable.

As heir and as a creditor he at first had an interest in connection with other creditors in what the plaintiff on the record might recover as trustee to the estate. But this he has entirely put off by the instrument which has conveyed it to the plaintiff. So that whatever the latter recovers now, he holds for his own use, except so far as the creditors of the estate other than Hayes may have a claim in equity for their proper proportions or dividends. The witness was therefore without apparent interest and was properly admitted. . '

The defendant offered at the trial to prove his own sayings. This he did upon the ground that the witness whom he proposed to interrogate had at the instance of the plaintiff who introduced him, already testified to some of them, relating to the same subjects with those with regard to which he desired to prove his other sayings.

It is the right of a party to prove such conversations of his opponent relating to matters in controversy as appear to contain admissions or statements tending to establish his own case. Bu,t that privilege does not extend so far as to authorize him to introduce parts of a discourse and to exclude from view such other portions as if disclosed, would qualify or contradict the purport of the first. And the party assailed may protect himself on cross-examination of the witness, by requiring him to state the whole of tbe conversation thus made evidence in the case. lie may go further; and if in' that conversation reference is had to expressions used by him on former occasions, he may bring these forward so far as they are required to render complete and intelligible the conversation first shown in evidence.

These are very familiar and well established rules. If it had been made to appear that in the conversation which the plaintiff proved between the witness and the defendant, any reference had been made to former expressions used by either, which imparted any significance to the remarks of either beyond their ordinary and obvious meaning, those expressions might have been proved by the defendant. But no such fact was shown, and no foundation laid by such means for the evidence offered by the defendant. Nor did he so far as we are advised bring himself within any exception to that general rule which precludes a party from supporting his cause by giving evidence of his own sayings. The court therefore properly excluded the evidence.

All the exceptions reported, some of which appear to have been rendered immaterial by the special finding of the jury, are therefore overruled and there must bo

Judgment on the verdict.