Foye v. Leighton, 24 N.H. 29

Foye v. Leighton

24 N.H. 29 | Superior Court of New Hampshire | 1851

Woods, J.

The objection taken to the deposition of Stephen Leighton cannot be sustained. The objection is to the manner in which the testimony was taken. By the 22d rule of court, testimony, contained in depositions, to be used either in courts of common law, or chancery, is to be taken upon written interrogatories, proposed at the time, by the counsel, and administered by the magistrate; and “ the interrogatories, as well as the answers thereto, must appear in the deposition, and the answers must follow each interrogatory as it is administered.” Such is the. method of taking depositions prescribed by the rule of court referred to. In the present instance the requirements of the rule were not followed, and the evidence, contained in the deposition, was not taken in the form of questions and answers written in the deposition. If the exception taken at the trial had been taken at the caption of the deposition, it must have prevailed. But the objection is one of a character that may be waived. The defendants were present at the caption, and having an opportunity to object, but omitting to do it, must be taken to have waived the objection. If the objection now urged to the regularity of the caption, had been brought to the notice of the magistrate at the time of it, it might and doubtless would have been corrected. The objection being of a character that could be waived, or that might have been obviated, if taken at the caption, comes too late at the trial, when there is no opportunity to correct it, and justice and fair dealing require that it should be regarded as waived. Gear v. Smith, 9 N. H. Rep. 63; Whipple v. Stevens, 2 Foster’s Rep. 219.

The statement, by Leighton, of the reason for making the inquiry of Mark H. Winldey, proved by the case, was not improper. It was a fact connected with the transaction, and was *37introduced as showing its probability. If the witness had stated that the plaintiff requested him to make the inquiry of Mark, it would hardly be supposed that a statement of that fact would be exceptionable, and the addition of the fact that it was for the reason of that request that he did it, could, we think, form no reasonable ground of exception. The statement of the reason for the act, in the present case, we regard as standing on a similar ground.

Clark’s testimony cannot avail the defendants as a ground for sustaining their motion for a new trial. The purpose of it was to show that at the time when the plaintiff labored in the business of making bricks, and boarded at the same house where the defendants, and other persons laboring in their employment in the same business boarded also, the groceries used at the house were 'purchased upon the joint credit of the defendants; were delivered, a part to the one and a part to the other, indifferently, and charged to them on their joint account, with their knowledge and assent. The case finds that the other evidence offered in the case tended to prove that state of fact, and that “ it appeared that when the defendants came, Clark purchased the horse which Mark H. Winkley brought and delivered, and the price was credited upon the account of Leighton and Winkley, and paid for by goods and money delivered to one or the other of them indifferently, and charged upon that account.” Here, then, the fact which it was the object of the testimony of Clark to show is found by the case to have been made to appear, and the evidence upon which it was made to appear was not objected to. The evidence to which the objection applies is that in reference to the interview between Paul Winkley and the witness, and Winldey’s proposition to sell the horse to the witness, and his representation that the defendants “were coming down there to make bricks, and would want things out of his store in payment.” Now if this evidence may not be regarded as being unexceptionable upon the ground that it is merely introductory, we think its reception can form no ground for setting aside the verdict, since the only facts which it can be considered as tending to prove, *38were made to appear at the trial upon other evidence, as is expressly found by the case. It certainly could not be regarded as proof going farther, and proving facts beyond what the other evidence tended to prove, and what it is found by the case were thus proved. In Wiggin v. Damrell, 4 N. H. Rep. 74, it was holden, that where a party, at the trial, virtually admitted a fact, the introduction of incompetent evidence, for the purpose of proving the same fact, would constitute no ground for setting aside a verdict. In Knowles v. Dow, 2 Foster’s Rep. 387, a witness for the defendant was admitted to testify to a fact which had already been proved by the plaintiff’s witnesses. The evidence was objected to, and it was decided that the objection, resting on the ground of interest in the witness, was obviated by the other proofs in the case, and formed no sufficient reason for disturbing the verdict. We think the case under consideration falls distinctly within the principle of the decided cases referred to. A party is in no wise prejudiced by the introduction of incompetent evidence of a fact which he distinctly admits, or himself proves by his own evidence, or which indisputably appears, and is found to exist upon the other competent evidence in the case, by whichever party the same may be introduced. When a fact is no longer in dispute, it would seem to afford but a feeble reason for setting aside a verdict, that evidence, ordinarily incompetent to prove the same fact, may have been admitted in the course of the trial having a tendency to prove it.

The sole and only legitimate ground upon which verdicts are set aside, when incompetent evidence has been admitted, is, that the party objecting to it has been prejudiced thereby. But it is apparent that no prejudice could result from the introduction of the evidence of which complaint is made, and this ground of objection cannot avail the defendants.

The ruling of the court relative to the question propounded to Foye furnishes no proper ground for setting aside the verdict. The inquiry then being made, when the question was put to Foye and rejected, was as to the existence of the receipt of Foye to Leighton and Winkley, and whose possession it passed into. Its *39object was to lay the foundation for the introduction of secondary evidence of its contents, and the evidence was merely preliminary, and addressed to the court and not to the jury, and could therefore have no relevancy to the issue between the parties, nor legitimately influence the verdict. It is not objected that the evidence adduced and laid before the court was not both competent and sufficient to furnish ground for the admission of the secondary evidence. Full permission was given the defendant’s counsel to cross-examine the witness, both as to the fact of the existence of the receipt and as to the person into whose possession it passed, they being the only facts sought to be established by that examination. The inquiry of the defendants’ counsel, however, took a wider range than was required to elicit the facts necessary to the object of the inquiry, and the ruling of the judge operated only as a restriction of that inquiry within its legitimate limits. We think, therefore, for all these reasons, that this exception taken at the trial cannot avail the defendants.

It is not necessary to decide the question raised as to the propriety of the ruling of the court as to the sufficiency of the evidence offered by the plaintiff to exclude Paul Winkley as a witness, upon the ground of interest. Upon the ruling of the court that the witness was inadmissible, the defendants offered a release, and thereupon the witness was admitted and sworn. The course pursued operated as a waiver of the objection. The party, instead of relying upon the exception, chose to remove the foundation of it by releasing the interest, if any existed, and in that way he availed himself of the full benefit of the testimony of the witness. The release of the interest, and the introduction of the evidence removed all pretence of any ground of objection, for the party had what he demanded, namely, the benefit of the testimony of the witness.

The ruling of the court, that the lease produced by Paul Winkley could not be given in evidence, without proof of its execution by the subscribing witnesses, was correct. The law requires the best evidence which the nature of the case admits of. And it has been long held, upon that principle, that *40where there is a subscribing witness to a written instrument, he must be produced, as furnishing the best evidence of its execution. There are exceptions to this rule, arising from circumstances beyond the control of the party offering the evidence, as the death of the witness, or, the fact that it may be, for some other cause, beyond the power of the party to produce the witness. Farnsworth v. Briggs, 6 N. H. Rep. 561; Dunbar v. Mardin, 18 N. H. Rep. 311. No such ground of exception, however, existed in the present case, and therefore the general rule was properly applied.

The fact that a witness who was introduced by the defendant had burnt a kiln of bricks for Samuel Leighton, one of the defendants, about the first of July, was wholly immaterial to the issue, unless it was burnt before the 12th of July. There was no claim made for services rendered after that time. The object of the testimony was to prove that the business of brick making done at the yard was done on account of Leighton alone, and not on account of Leighton and Winkley. But the case finds that the plaintiff left work in the yard, and Leighton went away on the 12th day of July, and that those facts were not contested. Upon the admitted state of facts, then, it could not be pretended that evidence that the witness burnt a kiln of bricks after the 12th of July for Leighton, could have any legitimate tendency to prove that Leighton was carrying on the business at the yard upon his individual account, or that Leighton and Winkley were not carrying on business there on their joint account prior to that date, and that the plaintiff labored for Leighton alone. The ruling of the court in this particular was in accordance with this view of the case, and therefore we think unexceptionable.

John S. Foye gave evidence of the contents of the receipt executed by him, and which was shown to have passed into the possession of Mark H. Winkley, one of the defendants, they having been first notified to produce it. He testified that after a conversation between the witness and Paul Winkley and Mark H. Winkley, Paul paid him five dollars, and wrote a receipt, which he thought read thus : “ Received five dollars of Samuel *41Leighton and Mark H. Winkley in full for labor done for them at making brick at Exeter.” It was contended at the trial, and the court were requested to instruct the jury, that the evidence of Eoye as to the receipt should show precisely its contents, in order to be of any effect, and that it should not be left for the jury to weigh probabilities in reference thereto. But the court declined so to instruct them. The question is whether the instruction should have been given that was requested. The rule of law upon this subject would seem to be well settled in the books. The evidence offered was secondary proof of the contents of the receipt after notice given to- the party having possession of it to produce it, and after his refusal to do so. It is well settled that even a refusal, on notice to produce, shall not be taken to establish the writing as claimed by the party giving the notice, nor as prima facie evidence that, if produced, it would prove what the party calling for it alleges. In such case some general evidence of its contents must be given, or at least of such parts of its contents as are applicable to the case. And the rule recognized by many authorities would seem to be, that after that, every doubt, every thing equivocal, imperfect, vague or uncertain in the secondary evidence, as in dates, sums, boundaries, &c., and whatever is mentioned shall be made against the party who might remove all doubt by producing the higher evidence. Life and Fire Insurance Co. v. the Meacham Fire Insurance Co. of New-York. 7 Wend. Rep. 31; 4 Burr. 2484; Cowen & Hill’s Notes, part 2, note 842, page 1192. In short, every fair presumption that can arise is to be made against such party, as to those portions of the contents which are not made to appear by the secondary evidence. Lymington v. McLin, 1 Dev. & Batt. 291. Where a defendant gave general evidence by a witness that a deed then in court, in possession of the opposing party, who upon notice refused to produce it, had been in the possession of the witness, and that he had often read it, and that he always supposed the premises in question were included in it, but the witness when cross-examined said he could not recollect the boundaries, nor state a single course which it contained, it was de*42cided, by the supreme court of New-York, that the testimony was competent to go to the jury, with strong intimations that they ought to believe that the premises were included in the deed. Jackson v. McVey, 18 Johns. Rep. 330. In conformity with the rule stated, and the case cited in illustration of it, no doubt exists that the evidence admitted in the present case was sufficiently-definite, and clearly competent to be submitted to the jury, in proof of the contents of the receipt in question. In fact, the evidence offered here was much more certain and definite than that which was held to be competent in Jackson v. McVey, before cited.

In the present case the- witness thought he gave the exact words of the receipt, while, in the case last referred to, the witness could only state that, having often perused the deed he always supposed the premises in question to be included in the deed, but that he had a very imperfect recollection of the boundaries in the deed, and could not from recollection state a single course which it contained. We entertain, therefore, no doubt of the propriety of the course of the court in refusing to direct the jury in the manner requested.

There can be no doubt that the receipt of Foye, to Leighton and Winkley, was one in proper form, and a proper instrument to be given, and such as would usually be given in discharge of a joint liability on their part, rather than of the several liability of either of them. Its tendency then is to show that it was given for that purpose. Mark H. Winkley accepted it, and thereby recognized and adopted it as a proper instrument for the purpose for which it was designed. No doubt, we think, can be entertained that it legitimately tended to show a joint employment of J. Smith Foye by the defendants.

It, moreover, tended to show that the business at the yard was carried on upon the joint account of Leighton and Winkley. And the plaintiff, having been employed by the same person, and having labored in the same business, at the same time, and at the same yard with J. Smith Foye, it may well be presumed, also, from the settlement made with J. Smith Foye, and the re= *43ceipt given by him to Leighton and Winkley, and accepted by them, that the plaintiff was also employed upon their joint account. It is not pretended that a portion of the laborers rendered service there upon the individual account of Leighton, while ■others were laboring on the joint account of Leighton and Winkley. No such position as that was assumed at the trial. The receipt then, under the circumstances, we think tended to show si joint liability of the defendants to the plaintiff.

The evidence which the defendants proposed to offer of a payment, since the commencement of this action, on account of the services sued for, was withdrawn upon a suggestion or ruling of the court as to its legal operation as evidence in the cause. This withdrawal carried with it all grounds of exception which might have existed if the evidence had been laid before the jury, and the ruling had been such as was suggested it would be. The evidence offered was not rejected by the court. At most, the court suggested what the ruling would be as to its effect, if in» troduced into the cause, and the party elected to withdraw it. There was then no ruling upon the evidence, nor any ruling rejecting it, for none was finally offered. The exception in this particular cannot prevail.

We see no ground upon which the motion for a new trial can be sustained, and therefore there must be

Judgment on the verdict.