Dorchester Trust Co. v. Casey, 268 Mass. 494

Dorchester Trust Co. v. Casey

268 Mass. 494 | Mass. | 1929

Crosby, J.

This is an action of contract against the principals and sureties on a joint and several statutory bond given by the defendants to the plaintiff for the purpose of dissolving an attachment on real estate made in a former action against thp principals. The defendants Cerussi and Gradone were the principals named in the bond, and the defendants Johnson and Casey were the sureties. The judgment in the former action on which the bond to dissolve the attachment was given has not been satisfied either in whole or in part. Pending negotiations in the former action one Gaffney, attorney for the plaintiff, had died. After the commencement of, but before the trial of the present action, Cerussi died. The defendant Johnson defaulted when called for trial, the defendant Gradone was in bankruptcy and did not appear, and the trial proceeded against the defendant Casey alone. Among other defences, Casey pleaded that the plaintiff, by its agents and attorneys, entered into an agreement with the principal Cerussi, whereby the plaintiff agreed to extend for a definite time the fulfilment of the obligation of Cerussi on the bond, and that thereby he, as surety, was discharged. The jury returned a verdict for the defendant. The case is here on the plaintiff’s exceptions to the admission of certain evidence, and to the refusal of the trial judge to grant two requests for instructions to the jury. The plaintiff expressly waived its exception to the denial of its motion for a directed verdict.

The first exception relates to the admission of testimony of Casey that Cerussi told him that Gaffney telephoned in his presence to the plaintiff. The defendant contends that this testimony was admissible under G. L. c. 233, § 65, as a declaration of a deceased person. In this Commonwealth it has been held that when a conversation over a telephone is otherwise admissible, it may be admitted in evidence when the witness testifies that he recognized the voice of the person with whom he was talking. Lord Electric Co. v. Morrill, 178 Mass. 304, 306, 307. To render such testimony admissible there must be evidence as to the identity of the person who talked over the telephone. Commonwealth v. Harris, 232 Mass. 588, 591. Morrison v. Tremont Trust Co. 252 Mass. *496383, 389. Commonwealth v. Gettigan, 252 Mass. 450, 461. A. T. Stearns Lumber Co. v. Howlett, 260 Mass. 45, 72, 73. There is nothing in the record to indicate the identity of the person with whom Gaffney talked. There is nothing to show that Cerussi recognized any voice. It is plain that the evidence was inadmissible on this ground. The evidence was also inadmissible under G. L. c. 233, § 65. The statute provides that “A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.” It is manifest from the nature of the evidence excepted to in the case at bar that it did not rest on the personal knowledge of the declarant. There is no evidence that Cerussi knew whom Gaffney telephoned to except that he called the plaintiff’s place of business. There is nothing to show that Cerussi knew that Gaffney had secured a proper telephone connection. The evidence also was immaterial and inadmissible as there is nothing to show that Gaffney talked with any officer or employee of the plaintiff who was authorized to bind the plaintiff in granting an extension of the time of payment, or that Gaffney had such authority.

Exceptions sustained.