13 Conn. 63 | Conn. | 1839
As to the evidence. As the creditors who received payment were alive, it would seem as if their receipts were not the best evidence which could be produced. It is their written certificate of the fact of payment. If admissible, it must be upon the ground that it is the admission of a person interested in the subject against his interest, or of an agent of the defendants. There is a class of cases where entries by or under the direction of persons in the usual course of their business, have been admitted as evidence of the fact as against third persons ; as where the drayman of a brewer rendered every night his account to his employer, of the persons to whom he had delivered beer in the course of the day. Price v. Torrington, 2 Ld. Raym. 873. But this has been allowed only when such persons were dead; and so strict has been the rule, that even dangerous sickness, utterly dis enabling the person from attending, or absence, will not be sufficient to dispense with his oath. Harrison v. Bladen, 3
It was insisted, however, that by the agreement of the plaintiff to pay the debts of the company, he was constituted their agent; and so these receipts are evidence for him. The rule undoubtedly is, that what an agent says or does in the course of his agency, constituting a part of the res gesta, may be given in evidence against his principal; but what such agent has admitted or related, cannot be given in evidence. Betham v. Benson, 1 Niel Gow, 45. Langhorn v. Allnut, 4 Taun. 511. 519. The United States v. Gooding, 12 Wheat, 463. & seq. The American Fur Company v. The United States, 2 Pet. 358. 364.
None of the cases cited by the plaintiff’s counsel contradict or extend this principle, unless it be the case of Prather v. Johnson & al. 3 Har. & Johns. 487. 490., where it is said, that “ if A, as surety for B, pays a debt due to C, on proof of the payment, A could recover of B, on C’s saying that A had paid it: of course, if C wrote that A had paid it, surely it is evidence, whether the writing was in a book or letter.” The case was where the surety of a collector, who, by virtue of the statute of the stale, brought suit against a man, who had neglected to pay his tax, and the surety paid it. To prove such payment, a writing was offered, purporting to be an account of such payment, made and signed by J. H., treasurer. This was objected to ; not because it was not proper evidence of the fact, but because there was no evidence that J. H. was treasurer, or that this was his signature. And the court held, that where an act of assembly directs the certificate of a public officer to be evidence, a paper produced with his name, will be evidence prima facie, unless the name is proved not to have been signed by him. Whatever we might, in this state hold, in a similar case, it is apparent, that the facts in that case did not call for any expression of opinion upon the point now before this court. Nor do we see any thing in the accounts between these parties, constituting Newell an agent, more than he was before. From his relation as a partner, he had a right,
But even if Newell was the agent of the company, these creditors were not; and it is their certificate which was offered in evidence. It is Newell’'s act, which is to be proved ; but the proof is from the declarations or admisssions of third persons, who might have been called as witnesses ; and how his agency, if he was agent, makes their receipts evidence, has not been shewn.
It has been suggested, that in matters of account, receipts of this kind are always evidence. It ought to be remembered, too, that in matters of account, the parties are also witnesses ; and there is no reason why, when they are under oath, they may not confirm their testimony, with the ordinary vouchers. Before auditors, or a court of probate, the party would swear, that he made the payments charged, and to confirm his oath, would exhibit the receipts. In this case, the receipts are offered, unsupported by oath.
It is said, again, to be matter of great convenience to the party to admit such documents. It may be for one part}7; but it may be very inconvenient, and perhaps dangerous, to the other. Under these pleas, the time of payment may be as important as the payment itself; and if we may presume that no man would acknowledge a payment to himself, unless it was actually made, there could be no such presumption as to the time of such payment. The creditors would have no interest in that subject, and would probably pay no attention to it. But if the receipt is evidence of payment, it is also evidence of the time of payment, at least prima facie ; and, of course, the opposite party must be bound by it, unless by accident he has a witness in court to meet it; whereas, if the creditor were called by the party proving payment, he might be cross-examined as to the time the payment was actually made. And one great object of the rule is, that if the witness is called, he may give some material evidence, from having some acquaintance with the dealings upon which the entries are founded. Cooper v. Marsden, 1 Esp. Ca. 1. This evidence, therefore, was properly rejected.
The plaintiff also objects to the charge of the court, for various reasons. One is, that the court called the attention of the jury (o a fact not in issue between the parties, viz., whether
There were four pleas upon which the defendants obtained a verdict. These pleas stated a variety of facts, by way of de-fence. One alleges non-performance by the plaintiff; one excuses performance by the defendants, because the plaintiff having neglected to pay debts as he ought, the tools were seized ; another avers, that the plaintiff himself seized the tools ; another, that the plaintiff did not furnish the cases, so that the defendants could finish the clocks.
Now, it is apparent, that the strength of the defendants’ case rested principally upon the fact, that the plaintiff had, by some act or omission of his, prevented a complete performance by them. The judge, looking at this as the prominent point, and one that might make an end of the case, instructed the jury, that if the defendants were prevented, by the neglect of the plaintiff, in not paying the debts due from the company, or the instalments he was-bound to pay, or by the acts of the plaintiff, in seizing and removing the materials and tools, they must give a verdict for the defendants. We are not prepared to say, that the verdict in this case, founded upon this charge, would not do entire justice to the parties in the cause ; but in its consequences, it may injuriously affect their right, as the facts found may be made use of beyond the present suit. The parties had chosen to go to issue upon distinct pleas, alleging distinct facts, although mostly tending to one point. Under these circumstances, they had a right to an expression of opinion from the triers, upon each of these distinct points. But the charge of the court was calculated to draw the attention of the jury to one only of these points, and to prevent any attention to the others. The acts of the plaintiff might fully justify the omission of the defendants ; but still this did not prove all the other issues. Thus, the fact that the plaintiff had prevented the defendants’ performance, will not prove that the plaintiff
We have examined the sixth plea, to see if the verdict could not, upon the charge, be properly taken upon that issue; as we might then have granted a new trial only in case the defendants would not consent to confine their verdict to this issue. That plea avers, that the defendants did make and deliver 1000 clocks within the time specified in their covenants, and that the plaintiffs prevented their making more, by taking from their possession a great part of the tools whereby, &c. But by the charge, if the jury found, that by the neglect of the plaintiff in not paying the debts and instalments, or in seizing and removing said tools, the defendants were prevented from performance, the verdict must be in their favour. They might then have found a verdict upon this count, without finding the facts relied upon as evidence of it, viz. the fact that 1000 clocks had been delivered, or that the tools were taken away. The charge being in the alternative, if they found either the omission of duty charged in some of the pleas, or the wrongful acts alleged in the others, the jury may have, in conformity to the charge, founded their verdict upon one only of the alternatives mentioned in it, and yet have in fact found several issues, some on one, and some on the other of these alternatives ; and thus injustice may be done to the plaintiff. We think, therefore, there must be a new trial.
In this opinion the other Judges concurred.
New trial to be granted.
