Sawyer v. Orr

140 Mass. 234 | Mass. | 1885

Holmes, J.

The defendant set up want or failure of consideration' for the note in suit. As the first step towards establishing the defence, it was necessary to show what the stipulated consideration was. The defendant testified that the note and $500 were given upon the plaintiff’s promise to deliver to him forty shares of the stock of the New Jersey Wire Cloth Company/. This the plaintiff now admits, but no such admission was made at the trial, and the opening to the jury on his behalf stated a different consideration, so that the defendant’s version stood denied. The defendant, to fortify his statement, offered in evidence an agreement signed by the plaintiff, which began as follows: “ In consideration of three thousand five hundred dollars paid me by Wm. Orr, Jr. for forty shares of the N. J. Wire Cloth Co.’s stock, part of which is held in note secured by said stock.” This agreement was excluded. The plaintiff’s signature was admitted, and therefore, if the document referred to the note in suit, it corroborated the defendant’s statement most effectually. It is true that the only testimony that the document did refer to this note came from the defendant, who had already testified directly to what the consideration was. We do not forget that it was said in Delano v. Smith Charities, 138 Mass. 63, that parties who have testified to a fact in issue directly discernible by the senses are not entitled, as a matter of right, to fortify their testimony by swearing to other facts merely for the purpose of making it more probable that what they said upon the principal point was true, when no evidence has been introduced to show improbability. But this rule cannot be pressed so far as to exclude a document which on its face suggests the probability that it refers to the note in suit, and which, if it does so, affords independent evidence of the principal fact alleged, merely because, for greater security, the defendant adds his testimony that it does refer to the note in truth, as it seems to.

Exceptions sustained.