74 P. 35 | Cal. | 1903
This is an action to compel specific performance of a contract which it is alleged was entered into during the month of March, 1871, by Winslow G. Hall, deceased, and Alfred C. Rulofson, plaintiff, and William H. Rulofson, father of the plaintiff, who also is dead. The contract the enforcement of which is prayed for was one whereby it is alleged plaintiff's father surrendered the plaintiff, then about seventeen years of age, to Hall, to adopt and keep as his own son, and waived and renounced in favor of Hall his claim and right to the affection, obedience, control, and services of the plaintiff. Hall, in turn, undertook to, and did, accept and adopt the plaintiff as his own son, agreed to love, cherish, protect, and maintain him as such, to become *456 responsible for his welfare and for his debts, and further agreed that upon his (Hall's) death, the plaintiff should have all the property of which he (Hall) might die seised. This agreement, it is further alleged, was made with the consent of the plaintiff, who released his father, William H. Rulofson, from all his parental obligations, and promised to render to Hall, and did render to Hall, all the duties of a son to a father.
Upon the trial evidence was admitted upon behalf of the plaintiff proving certain declarations made by Hall, to the effect that plaintiff was his son, that he was plaintiff's father, and the like. The defense, over objection and exception of plaintiff, was permitted to prove other declarations of Hall to the effect that he (Hall) was only plaintitff's guardian. It is contended by appellant that the rulings so admitting evidence of these declarations were erroneous, and the contention must be sustained.
Section 1850 of the Code of Civil Procedure declares the nature of the evidence which may be given upon the trial of an issue of fact. Section 1853 of the same code specifically provides that: "The declaration, act, or omission of a decedent having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest." In the case at bar the defendants asserted their right to the property left by Hall as legatees and devisees under his will. The plaintiff's claim of right had its origin in contract. Notwithstanding the multitude of authorities upon the question, respondents have produced but one tending to uphold the ruling contended for. They place reliance upon the language of the court in Burns v. Smith,
Aside from this case, however, the rules of evidence, and the decisions upon them, absolutely prohibiting such self-serving declarations, are overwhelmingly established. But as to the resgestae: The admitted declarations were made from time to time after the execution of the alleged contract. This court, inHeckle v. Southern Pacific Co.,
"In looking into the testimony to ascertain what the original bargain was, we are compelled to disregard almost entirely the depositions on behalf of the defendant. They are mainly declarations of Henry Wilson; and while the complainants are entitled to prove his admissions, the rule will not allow his declarations to be introduced on behalf of his representatives, any more than of himself if he were living." (Wilson v. Wilson,
"On the other hand, the depositions offered by defendants cannot be received, so far as they consist of declarations made by the decedents in their own favor, or in support of the position now taken by their representatives, when not made in the presence of the complainants, nor accompanying any act which properly belongs to the transactions between the parties."(Scribner v. Adam,
"But the declarations of the deceased were not admissible in favor of his estate, to show that he was not indebted to plaintiff. The declarations of a party against his interest are admissible upon the presumption that he would not speak to his own injury unless it were true. But he cannot make evidence by declarations in his own interest. The defendants represent the deceased, and they can prove no declaration of his which he could not." (Weller v. Weller, 4 Hun. 197.)
"His declarations were proved. It was not competent for those claiming under him to prove other declarations of a contract more favorable to himself." (Miller's Appeal, 100 Pa. St. 573.1) *459
"For the purpose of rebutting this evidence, the defendants — the children aforesaid acting as defendants — were permitted to testify and to introduce the testimony of other witnesses concerning conversations had with the deceased and concerning his declarations made in the absence of the plaintiff. This testimony was clearly incompetent. The declarations of the deceased were no more admissible than they would have been if the suit had been instituted against him personally while in life. A party's declarations are competent evidence against him or his representatives, but cannot be adduced by or in favor of either."(Bristor v. Bristor,
Reference may further be made to Reese v. Murnan,
No more were they admissible as tending to prove relationship, and this for the very obvious reason that they were not offered to prove relationship, but to disprove that fact, and the relationship must be shown before declarations touching pedigree can be introduced in evidence, since their admissibility is based upon the very fact of relationship. Thus, in Estate of James,
As little force is there in respondents' assertion that none of the declarations admitted was made against decedent's pecuniary interest. It was of the very essence of the contract which plaintiff pleaded that Hall had agreed upon his death to leave him all of his property. Declarations showing, or tending to show, that neither he nor his property was bound by any such contract are clearly self-seeking and made in his own pecuniary favor.
It is finally urged by respondents that even if the rulings of the court admitting these declarations were erroneous they were still harmless. But to this the first answer is made by our own decisions. "A party cannot, after insisting upon the admission of improper evidence over an objection to its admissibility, defend his course by contending that the error was harmless." (Lissak v.Crocker Estate,
In the case at bar we are not left in any doubt as to the effect which this evidence had upon the mind of the trial court. The judge himself declares it in the opinion which he handed down, in the following language: "As against the testimony of plaintiff's witnesses making for plaintiff's adoption, as alleged, is the testimony of witnesses for defendants, equally credible, that Captain Hall had declared to *461
them that he was the plaintiff's guardian." And if the injury to appellant be not thus made sufficiently apparent, it should be added that, as matter of strict right, either party litigant has the right to the unbiased opinion of his trial judge, based upon legal evidence. This court in such cases sits only as a court for the correction of error. The judgment upon the facts, to which every litigant is entitled as of right absolute, is the judgment of the trial court. In this class of cases, as well as in all others, the findings of fact are made by the trial court, and if there be substantial evidence to support them they cannot here be disturbed. But those findings must themselves be based upon legal and admissible evidence. As is said in Winne v. Winne,
It follows therefore that the judgment and order appealed from must be reversed and the cause remanded, and it is so ordered.
Lorigan, J., and McFarland, J., concurred.
Hearing in Bank denied.