13 Conn. 173 | Conn. | 1839
The evidence offered by the defendant was objected to and ruled out, upon two grounds; first, on account of the source from whence it was derived; and secondly, on account of the nature of the evidence itself.
That Hickok was a director of the company is of no importance, unless to prove him an agent, — a fact not denied. The testimony offered, however, was not to shew what he did as agent, except by his admissions or confessions of what he had /done. The rule is well settled, that the confessions of an agent are not evidence against his principal, although his declarations accompanying his act may be admitted as part of the res gesta. Langhorn v. Allnut, 4 Taun. 511. 519. Garth v. Howard, 8 Bingh. 451.
It is claimed, that Hickok being a stockholder in the company, his declarations are admissible as the confessions of a party. That the confessions of the party on the record may be given in evidence, is certainly-Srye. Testimony of this kind proceeds upon the ground that is not to be presumed that per
It is said, however, that all these are proper considerations for the jury to weigh. But when we consider the surprise upon the real party from testimony of this kind from unexpected quarters, which must frequently happen, and the embarrassments occasioned thereby, the multitude of collateral inquiries which might often arise in investigating the real connexion of the persons whose admissions are offered in evidence, and the delay attending such inquiries, it seems to us, that such evidence would more often mislead than guide to truth. It seems to be supposed, that because the individual stockholder cannot be compelled to testify, his declarations therefore are admissible ; but it does not follow, that the declarations of any person who cannot be compelled to testify on account of his interest, are admissible as evidence. Take the case of bail, of a feme covert, of a person, who, by his answer, might subject himself to a penalty or a debt; their declarations are not admissible as a matter of course. In such cases, perhaps a court of chancery, upon proper application, might compel a disclosure. Then there would be no surprise ; and such terms might be imposed as would render it safe. We know that in England, it has been decided, by the court of King's Bench, that the admis
There is another objection in this case to the evidence offered, equally fatal. It is in direct collision with the terms of the written contract. By the writing, the defendant expressly promised to pay twenty-five dollars per share, if the company assume the making of the road, &c. He has inserted the terms, upon which, if complied with, he will pay. He now proposes to add another condition — if a sufficient sum is subscribed to build and complete the road. That the effect of a written instrument cannot be varied by parol testimony, is too well settled to need argument or authority to support it. A few cases only will be alluded to. Where a note is payable on demand, evidence cannot be admitted to prove that it was agreed it should not be paid until the death of the maker, or that it should be renewed when it fell due, or paid from a particular fund. Hoare & al. v. Graham & al. 3 Campb. 57. Campbell v. Hodgson, 1 Niel Gow, 74. Moseley v. Hanford, 10 Barn. & Cres. 727. Woodbridge v. Spooner &
It is claimed, that this testimony is proper to shew that this instrument was never to have any operation at all, until such a sum was subscribed. There was no evidence of any agreement that this writing was not to be delivered over to the company until such a subscription was obtained. So far from it, it was delivered to the agent of the company appointed to procure these subscriptions. The writing, therefore, was delivered absolutely, subject only to the conditions contained in it. It is then the naked case of an attempt to controul the effect of a written instrument, by parol evidence.
It has also been held, by the supreme court of the United States, in the case of The United States Bank v. Dunn, 6 Pet. 54. 8 Pet. 16. that an agreement by the president and cashier of a bank, that the indorser of a note should not be called upon, unless a pledge was insufficient, could not be proved, because these officers had no right to make such an agreement. It would seem, therefore, that this principle would have been sufficient to exclude the evidence. But as this ground was not taken below, and as possibly it might have been obviated by other testimony, we barely allude to it. The other objections are sufficient.
The defendant also claimed, that the charge was incorrect. By the charter it was provided, that the meetings of the company should be holden annually ; and that the meetings which took place after the first, should be holden at such time and place as the company should prescribe. It further provided, that the affairs of the company should be governed, by a board of directors, chosen by the stockholders in general meeting; and that the officers appointed should hold their offices until others should be appointed in their stead. At the first meeting, seven directors were duly appointed; and a by-law was passed, authorizing the directors to order the payment of instalments; but the time and manner of holding future meetings was not prescribed. It appeared, by the records of the company, that at the annual meeting of the company on the 28th of March, 1836, directors were chosen for the ensuing year; four, ora
The defendant claims, - that when the records speak of the directors, they must mean the directors last chosen; and that the fact that the records shew the directors were chosen under circumstances when such a choice was illegal, necessarily leads to the inference that the votes were passed by these directors.
It appears, that there existed a board of directors competent to act; and that the directors did act. It also appears, that a major part of the directors last chosen were legal directors, if not by that appointment, by virtue of the original appointment. Under these circumstances, is it incumbent upon the plaintiffs to prove any thing more than they have done ? Is not this sufficient prima facie evidence that it was legally done, under the maxim that the law presumes what is done to be rightly done 7 Instead of there being but three persons acting as directors under an irregular choice, suppose there was but one; should we hold their acts void, because that one might have been admitted to the board, and because his vote might have
The matter of notice has not been much insisted on ; and the defendant surely cannot, when no term of notice is prescribed, complain, if he has had reasonable notice ; and the fact that the defendant promised to pay both instalments, more than thirty days after the last was laid, is sufficient evidence of his having had reasonable notice. As to the notice to others ; the fact does not appear what notice may have been given to them ; nor is it very easy to see how the want of notice to them could constitute a defence for this defendant.
We think, therefore, that there ought not to be a new trial.
New trial not to be granted.