Smith v. Cox

9 Or. 327 | Or. | 1881

By the Court,

Watson, J.:

This case comes here on exceptions taken at the trial to certain rulings of the lower court admitting evidence, and giving and refusing instructions to the jury.

The respondent, Gideon S. Cox, asked G. W. Cox, one of his witnesses, this question: “ State whether, on or about the 6th day of October, 1866, your mother, Susannah Cox, made you a deed to the south half of the donation claim of Gideon S. Cox and wife, according to the division agreed upon by them.” Appellant objected to the evidence as incompetent and immaterial. The court overruled the objection and appellant excepted. The witness answered: “ She did.”

The evidence was immaterial. The respondent having plead in his separate answer the execution and delivery of this deed by Susannah Cox for this land to G. W. Cox, in connection with other circumstances, as altogether affording a reasonable inference of his understanding of the act he was binding himself to perform, by executing the bond sued upon, and appellant having denied all of them in his reply, and they, in our judgment, furnishing grounds for such reasonable inference, by disclosing a sufficient motive on the part of respondent to do that act, rather than the one expressed in the bond itself, the effect of proving such circumstance, in connection with the other circumstances plead and proved, must necessarily have been to strengthen his credit as a witness before the jury, and add new weight to his defense generally, by showing it to be natural and reasonable, on account of its accordance with such antecedent facts.

But the very thing to be proved in support of the theory of the defense was the existence and contents of this deed, and this was accomplished by the parol evidence of the witness, G. W. Cox, above set forth. The admission of such evidence was in violation of the general rule that the writing itself is the best evidence, and must be produced, or its non-production satisfactorily accounted for, before parol evidence can be received. It did not alter this rule, that the deed was between third parties, and void as a conveyance of the real property mentioned in it.

The material facts in this case were its existence and contents, not its effect as between third parties. In this view, the deed itself was improperly ruled out by the court below, but this did not render tbe parol evidence admissible.

Tbe rulings in regard to tbe instructions to tbe jury, which were excepted to by the appellant, present the question whether a mistake of the respondent as to the character of the bond which he signed, caused by the false representations of the appellant, and in the absence of which the bond would not have been signed by the respondent, would, if proved, bar a recovery on the bond in an action at law, without proof that appellant knew such representations to be false.

The court below seems to have proceeded on the supposition that it would. This we conceive to be erroneous. The circumstances under which false representations were made in a given case, may fairly justify the inference by the jury that the party making them knows them to be false, but the court cannot assume them as a conclusion of law. Although false, yet if honestly believed to be true by the party making them, they were not fraudulent, and would afford no defense, in an action at law, on the bond. (Champion v. White, 5 Cowen, 510; Harper v. Gilbert, 5 Cush., 418; Elder v. Elder, 10 Maine, 85.)

We are satisfied that upon both these points the court below erred in its rulings, and that they were of such a nature as to injure the substantial rights of the appellant.

The judgment of the court below is reversed with costs, • and the cause remanded to the court below for further proceedings.

Judgment reversed.