3 Sumn. 1 | U.S. Circuit Court for the District of Maine | 1837
Two points have . been argued upon the motion for a new trial. The first respects the admission of the parts of the deposition of Gordon Winslow, to go as evidence to the jury, which were objected to by the defendant. The second respects the rejection of the letter of the same witness, which, it is supposed, had a
But in the present case, it is not necessary to rely on this ground; because, it is clear that the original contract made between Lewis and Winslow, and that made between the latter and the plaintiffs, for the purchase of the land, were for a different proportion from that, which was finally agreed upon by all the parties; and the conversations respecting the purchase between Lewis and Win-slow were proper to explain the nature and character and circumstances under which the new contract, substituted for the original contracts between all the parties, and with the consent of all, was entered into. By the original contract Winslow with Lewis was to have a half, or a quarter, of the land, at his election. By the original contract of Win-slow with the plaintiffs they were to take a quarter of the purchase. By the substituted contract, Winslow was to take one third, and the plaintiffs one third. And it seems to me that it was proper for the jury to take ail the negotiations of the parties into consideration in order to determine whether the defendant had been guilty of the false and fraudulent representation complained of. Indeed, in a case of this sort, it may fairly be presumed that, if Lewis falsely and fraudulently misrepresented to Winslow the sum which he had given or was to give for the land, the presumption would be strong, that he would not hesitate to make a like misrepresentation to the plaintiffs. In this view the evidence was properly admissible, as corroborative evidence. But it appears to me, that there is very strong reason to believe, that Lewis, at the time when the final contract was made with the plaintiffs, had full knowledge that his prior conversations with Winslow had been communicated to the plaintiffs, and constituted the basis of their arrangements with Winslow. If so, there is the best reason why those conversations should be given in evidence to the jury. And under all the circumstances, it seems to me that it was fit for the jury to have the whole evidence before them, so that they might pass their judgment upon this very important fact
As to the second point, the rejection of the letter of Winslow, it is very clear that it was not admissible, except for the purpose of contradicting or qualifying some of the statements made by Winslow in his deposition, and thus affecting the credibility of his testimony. For any other purposes, or to establish any other independent facts, it would not be admissible, as it would ^e mere hearsay, and not under oath. Now it is not pretended that there is any contradiction between that letter and Winslow’s deposition. Is there, then, in it any qualification of his testimony which would justly affect his credibility? It is said, that the contents of the letter have a direct bearing on the answers of Winslow to the sixth and seventh cross interrogatories of the defendant, and show the influences under which Winslow gave his testimony. The- sixth cross interrogatory (which was objected to by the plaintiffs) Is, “Was not Mr. Crocker offered six dollars an acre for a part of his purchase by Mr. Kinsman, one of the explorers?" The answer is, “Mr. Kinsman was desirous of purchasing a quarter of the township, and if he took it the price was to be six dollars an acre. And it was agreed between Mr. Lewis, Mr. Crock-er, and myself, that we should each let him have one twelfth of the whole, which would make a quarter. He was to have it. if he met us at Portland on a day appointed. He did not come to Portland, nor did he take the land.” The seventh cross interrogatory is, “Did not Mr. Crocker say on our way to Portland, that he hoped Mr. Kinsman would not get to Portland in season to get the land of us, as he would rather keep the land than sell' it at six dollars?” The answer is, “I understood him to say so. We all felt very well satsified with the land at that time. We had bonded it at eight dollars, as abovemen-tioned.”
Now, it seems to me, that there is not the slightest qualification of the terms of these answers in any part of the letter written on the fifth of July, 1S30. On the contrary the language of the letter entirely corroborates •these answers. By “the general,” in this letter it is admitted that Mr. Kinsman is meant;' so that it is palpable, that the statement,