Robinson v. Litchfield

112 Mass. 28 | Mass. | 1873

Endicott, J.

The first exception is to the admission of the fifth question and answer in the deposition of Taylor P. Rundlett, on the ground that it called for and contained the expression of an opinion only. It is often difficult, in the examination of witnesses, to draw the line between the expression of an opinion and the statement of a fact; it often occurs, that what seems to be the statement of an opinion is really the statement of a fact, and frequently a statement is made, as of a fact, which is really the expression of an opinion. Further inquiry is often necessary, in such cases to ascertain the sources of information and knowledge of the witness on the subject. The answer objected to might be open to the exception taken, if it stood alone and unexplained ; but it does not; the witness, in other answers in his examination in chief, states facts within his own knowledge, which, if believed, clearly establish the alleged partnership. But what is more decisive, the defendant, in his cross-examination, in terms asks the witness to state all his means of knowledge and how he knows, as to the matters inquired of in the fifth direct question. He replies that he was present when the bargain to enter into partnership with his father was made; that he talked with the defendant Litchfield frequently about the business of the firm, and that his sources of information were, to use his own language, what he saw, heard, and what Litchfield told him. He also stated that he was in the employment of the firm during this period, and was in daily communication with Litchfield. It would seem to be competent for the witness to state that Litchfield had a partner, and who he was, if Litchfield had so stated to him. Whatever doubt existed, as to the character of the fifth direct answer, was effectually removed by his reply to the sixth cross-interrogatory, and the defendant is not entitled to the benefit of his exception to the fifth direct answer, as the expression of an opinion only.

The second exception is to the exclusion of the conversation with Dunbar. Dunbar testified that he met Litchfield and had a conversation with him at Hingham on the evening of July 5th; by this it was intended to show that Litchfield could not have gone to Albany that day, as testified by the plaintiff’s witnesses. The conversation was offered for the purpose only of fixing that date as the time when Dunbar met Litchfield. This was not original evidence relating to the principal fact in controversy in the nature of declarations accompanying an act, and so to be taken as part of the res gestee, but hearsay evidence to establish a specific collateral fact, which was susceptible of proof by witnesses, speaking from their own knowledge, and actually testified to by Dunbar. In other words, hearsay evidence is offered to aid in proving that Litchfield was not in Albany on the 5th of July. We think it was properly rejected.

Exceptions overruled.