Foot v. Hunkins, 98 Mass. 523

Foot v. Hunkins

98 Mass. 523 | Mass. | 1868

Hoar, J.

The evidence to which the claimant objected, though not of great weight, was competent for the purpose for which it was admitted at the trial, and the exceptions taken by the claimant to its admission must therefore be overruled.

A material question upon the issue between the plaintiff and ihe claimant was this, whether the land, and the wood taken from it which N. R Hunkins sold to the persons summoned as .tustees, were his property, or purchased with his money and held in trust for him, or whether they were the property of the claimant. In opening his case, the claimant stated to the jury in effect as one proof that they were not the property of N. F *526Hunkins, that N. F. Hunkins failed in business in 1857, and since that time had had no property nor means of acquiring any. He introduced the testimony of N. F. Hunkins, substantially in support of this proposition. To meet this claim and evidence, the plaintiff was allowed to offer evidence from Curtis that N. F. Hunkins had property at the time of his failure, which he had put into the hands of a relative without consideration and for the purpose of securing it for his own use ; which was evidence slightly tending to show that Tie had the disposal of it. It tended to meet the argument and evidence that he did not furnish the money to buy the wood land, because he had no means to do it. It showed a source from which such means might possibly, if not probably, have been derived. The time was somewhat remote ; but it was the time to which the claimant had himself referred ; which he had chosen as the point of starting in investigating the relations of the parties; and the distance of time was not so great as to make the evidence inadmissible.

The contradiction of N. F. Hunkins, by proof of his declarations from Hill and Curtis, was competent evidence, because it was upon a material question, though brought out on cross-examination. His declarations would not have been admissible as proof of the truth of the fact which he stated; but, as he was a witness, he could be contradicted upon any part of his testimony material to the issue. Exceptions overruled.