Eddy v. Davis

34 Vt. 209 | Vt. | 1861

Aldis J.

The rule of law that the declarations of a party are admissible as evidence, when and only when they are a part of the res gesta, is one of the most difficult in practical application. The declarations must be connected with some transaction which is admissible in evidence, and must, be made at the time, and must serve to explain, modify, or give character to the transaction. To determine upon the proper application of the rule to the case at bar, it is necessary to consider what the transaction was in connection with which the declarations here excluded were made — whether it was admissible as evidence, and upon what grounds, and whether the declarations serve to modify or affect the inferences which may properly be drawn from the transaction.

The question in dispute was whether six cattle belonged to the plaintiff or the defendant. Each claimed them. The plaintiff offered evidence to show that he employed Wright as his agent to buy the cattle for him. The defendant claimed that Wright bought the cattle for himself, and with his own money, and sold them to the defendant. The plaintiff offered evidence to show that he employed Wright with another agent of his, one Wilder, to drive the cattle up from Chester to Mount I-Iolly, and put them in a pasture hired jointly by himself and Wright, and that he (the plaintiff) directed Wright and Wilder to call as they went to the pasture at G-. M. Lee’s, and there brand the cattle with the letters G-. M. L., the initials of Mr. Lee, of whom the pasture was hired, and that they did as he directed ; — that the cattle thus driven to pasture and branded, comprised the six in dispute, and a larger number of his own, about which there was no dispute. Now the acts thus proven were clearly acts of ownership — the exercise of dominion over the property — such as the owners of cattle usually exercise over their own, but do not presume to use with cattle belonging to. others. The marking of cattle, either with one’s initials, or with any other mark which might serve to identify them is clearly evidence to prove ownership. If all this was done by the authority of the plaintiff, it was evidence in his favor. If Wright assisted in this whole transaction — if he marked the cattle which he claimed with the same mark which the plaintiff had directed to have put on his, and turned them into the same pasture and said nothing to indicate that he claimed to own them, the natural inference which one would draw from the transaction, would be that all the cat-tie belonged to one person — and that the plaintiff. But if at the time he was thus using the same mark which the plaintiff had appropriated for his cattle, he had told those who aided in the marking that the six cattle were his and not the plaintiff’s, and especially if he said this in the presence of the agent of the plaintiff (Wilder) — it seems to ns that it is a declaration which most materially affects the character of the act done, and the natural inferences to be drawn from it It rebuts the idea that the cattle were by the act of marking recognized as being the property of the plaintiff — and teuds to show that they were not all alike, though marked alike, but that the marking was as to the six cattle by his authority.

The court excluded the evidence that Wright, while he and Wilder were branding the cattle, pointed out the six cattle, and said that they belonged to him, and that, the others belonged to the plaintiff. Now this was material for the defendant to rebut the inference naturally to be drawn from their being all marked with the mark which the plaintiff had directed, and which was used upon those which were admitted to belong to the plaintiff, that they all belonged to the plaintiff. It was material too, as strengthening Wright’s evidence that the mark was used to show, if any of the cattle strayed away, that they belonged to the pasture. We think it should have been admitted.

It is urged that this evidence was not used by the plaintiff to show that he owned the cattle — but only to identify diem as the cattle taken from the pasture by the defendant. If the court had given this instruction to the jury — that they should reject the whole transaction of driving the cattle to the pasture, and branding them, as not tending to prove ownership in either the plaintiff or Wright, then the defendant could,not complain of the exclusion of the declaration made by Wright; as that was admissible only to rebut inferences which might, without that, be erroneously drawn from the transaction, that he thereby recognized the property to be the plaintiff’s The whole being excluded by the court, that part of it which favored the defendant would be immaterial. But the court does not appear to have done so.

The testimony offered by the plaintiff was admitted. Unless the court instructed the jury to reject it, they would treat it as evidence in the case. Upon examining the minutes of the charge (which are quite meagre) we are unable to find that he gave any directions to the jury in regard to this evidence. The reasons which the court state in the bill of exceptions, as having influenced them in excluding the declaration of Wright, do not appear to have been given as instructions to the jury and even if they had been, they seem to result from an impression upon the mind of the court that the act of branding was to be taken, by itself alone and disconnected with the alleged previous directions of the plaintiff r and that in this view the marking of the cattle did not tend to show that either the plaintiff or Wright owned them. This we think was an erroneous view of the evidence, and one which the jury would not have taken, unless-expressly directed to do so. We are not able to find that any such direction was given. Without such direction they would consider the marking as an act done by the direction of the plaintiff, and thus evincing his ownership ; — not the mere marking of initials, which of themselves applied neither to the plaintiff or to Wright, and therefore did not tend to prove ownership in either, and which was to be considered as an isolated act, deriving no significance from the plaintiff’s previous orders. We have not thought it necessary to review the decisions to which counsel have referred us. -They all agree in the statement of the general principle. But it is in the application of the principle to facts that the difficulty lies, and upon this subject each case stands so much upon its own facts, that it furnishes but little aid either ,in the illustration or application of the principle to any other. 1 he opinion of the court in 9 Cushing 36, states with perspicuity the general rule, and has most appropriate remarks upon the difficulty which attends its application, and the singular differences of opinion among eminent judges in determining in particular cases the admissibility of such evidence. None of the cases cited by counsel seem to resemble the case at bar so far as to assist us in solving the question here presented. As we think the evidence improperly excluded, we reverse the judgment, and remand the case for a new trial.

Judgment reversed'.