Elkins v. Hamilton

20 Vt. 627 | Vt. | 1848

The opinion of the court was delivered by

Redfield, J.

The only question in the present case, upon which there seems to be any doubt of the correctness of the trial in the court below, is in regard to the declarations of Enoch Sanborn, which the court admitted, as a part of the res gestes. The court were no doubt right in regarding his naked declarations as not being competent evidence ; and equally correct in admitting them, when made in connection with his acts, which became controverted matters in the trial. There is no way of determining the true character of an equivocal act, but by the declarations of the agent, at the time, and in connection with the act. And when a series of acts come in controversy, as, in the present case, the carrying on a farm for the season, much must, no doubt, be left to the discretion of the judge, in determining what declarations are thus to be admitted, as part of them gestee. Nor should we be inclined to order a new trial, for the admission of any declaration, under such circumstances, where there was any reason to suppose it could have any tendency to characterize the acts in question. And even where improper declarations are admitted, if the jury are told, in general terms, how to distinguish between those declarations which are competent, and those which are not, we should not order a new trial on account of admitting the evidence. But in the present case the declarations were admitted, under objection, and without any intimation to the jury, that they were not all to be regarded as evidence. This was, in effect, telling them, that they were competent evidence, and, as such, to be weighed. If, then, they were clearly incompetent, there must be a new trial.

The declarations principally complained of are those in regard to seed corn, and to the hay. It was, no doubt, proper enough to n show, by the declarations of Enoch Sanborn, on whose account and! for what purpose he obtained the seed corn. But how his decIara-4 tions, made at that time in regard to the general mode of carrying on the farm, had any tendency to give character to the act of an offer to buy seed corn is certainly not very obvious. It seems to us a somewhat latitudinarian construction of the rule, admitting declarations as a part of the res gestes. But what was said by Enoch San-born, while at work upon another farm, as to the mode of carrying on this farm, and the quality of the hay cut thereon, does not seem to us to have been evidence of any importance in determining the case. But, as the defendant insisted upon having it in the case, notwithstanding the remonstrances of the plaintiff, we presume he expected it to have some influence upon the case; and as it is clearly incompetent, it is but just, perhaps, that there should be a new trial.

Judgment reversed; new trial granted.