61 Vt. 230 | Vt. | 1888
The opinion of the court was delivered by
1. As to the letter of March 25th, the clause referring to the defendant’s ownership of the stable was admissible in connection with the other evidence tending to show it referred to the trade in question. Under the contention of the defendant that it referred to the consignment trade his rights were .guarded with peculiar exactness in the instructions to the jury.
The next exception of the defendant, after the charge to the jury, on the ground that the whole letter was not admitted, ■came too late.
The plaintiff offered the whole letter but only for the purpose of showing said clause and . the court told defendant’s
The claim that the court, in its first ruling, decided as matter of law that the clause admitted referred to the trade in question, is not borne out by a fair construction’of the exceptions-They do not even show that he expressed such opinion to the jury. They only show that being of such opinion he admitted the clause, and then left it to the, jury, upon the other evidence,, to say whether it did refer to the trade in dispute or to the other-trade talked about.
2. One important phase of the plaintiff’s claim was that the representations of the defendant as to his ownership of the livery stable and contents were false. The plaintiff’s evidence-tended to show, in substance, that the defendant said that this property was his and was the measure of his means. This made it proper for the plaintiff to show what mortgages then rested upon that property, and that he was owing debts .to such an amount that he was then insolvent and had not the means as he represented. So there was no error in the admission of that class-of mortgages and the showing of his then debt.
The defendant’s counsel lay more stress on the admission of the mortgages that the defendant subsequently put on this property and the wagons he received from the plaintiff. One was-put on as soon as the wagons were received, and three others followed within a month. The plaintiff’s evidence tended to show, in this connection, that some of the debts which it was specified in the mortgages that they were given to secure, were fictitious. These mortgages were admitted, with the other evidence showing-the circumstances under which they were given, as tending to-show that the purchase of the wagons was made with the intent not to pay for them and to keep the property, including the wagons in dispute, from attachment. They wexe not admitted as tending to show an intent, formed subsequent to the trade, not to pay for the wagons, or as being similar acts of fraud as here complained of and occurring about the same time, as in Eastman v. Premo, 49 Vt. 355.
3. It is urged that the question put to the defendant about taking out the freights was improper on the ground that it violated the rule which excludes conversation relating to a compromise.
The case does not show that there was ever any dispute about the debt. On the trial the defendant, evidently to meet the-plaintiff’s claim that the defendant did not intend to pay for the-wagons when he bought them, claimed that he had always been ready to pay for them when he could get a claim allowed that he-made about the freight. Under this claim the plaintiff was-allowed to ask the question, and in reply the defendant admitted that the'plaintiff had offered to allow him the very thing which he-was claiming had stood in the way of his payment. The defendant laid the foundation for the question by a false claim in his own evidence relating to the very matter which is now urged, could not be touched, because it was about a compromise. We think there is no more force in the argument than there was-truth in the defendant’s claim, by his own admission.
4. Against the defendant’s exception, the plaintiff’s witness,.. Phillips, who was the plaintiff’s agent in the sale of the wagons,, was allowed to state that he should not have sold to the defendant
Defendant’s counsel claim this was error on the ground that it violates the rule that a witness will not be permitted to testify what course of action he would have pursued if certain specified acts had not occurred.
Assuming that this is a sound rule of evidence, we still think the testimony was admissible for another purpose in the connection in which it Was offered.
The plaintiff in the opening had introduced evidence tending do show what the defendant said about his property and that the plaintiff relied upon it as true, not knowing to the contrary, and that it was- false.
The defendant’s evidence tended to meet all the points by a -denial of making such representations and stating what he did say.
If what he claimed to have said was true then the plaintiff •could not have relied upon representations, which Phillips had •testified to.
In this posture Phillips was recalled in rebuttal and denied that the defendant had stated as he testified, and was then asked the question which called out the evidence to which the exception was taken.
We think the testimony became admissible for the purpose of explaining the denial and the fact that Phillips relied upon the .representations he claimed then. If not strictly rebuttal for the latter purpose, no objection was suggested on that score.
5. The court received in evidence, subject to the defendant’s ■objection and exception, a certain purported copy of a letter dated March.23d, addressed to the defendant and signed by the plaintiff. This copy contained a clause bearing materially on an .issue in the case. The question is whether this copy was properly admitted in evidence.
This copy is called in the exceptions a type-written copy, but the evidence is referred to from which it plainly appears that it
The defendant produced the other letters but not this one and testified that he never received it. The plaintiff company proved by this agent, Phillips, that, in the regular course of business,, copies of all letters sent out are preserved by the company in a-press letter book, bound and paged, from which he removed the-leaf, page 242, containing the alleged copy, the place in the book corresponding with the dates in the regular order.
The witness testified that he did not write the letter or see it' written or sent; that it was the only letter in the book addressed', to the defendant near the date of March 23d ; that in the ordinary course of the mail it would reach St. Johnsbury, where the defendant lived, on March 25th, from Syracuse, N. Y., where plaintiff’s office was. The defendant wrote a letter to the plaintiff under date of March 25th, one clause of which was this: “ Your letter came to hand this morning and will say in reply,”' etc. It does not appear whether the person who typed the original letter, or mailed it, or made the letter-press copy of it is-dead or alive or why he was not produced, and no one testified, in terms that the offered copy was a true copy of a letter sent to the defendant. The plaintiff offered the letter-press copy, counsel saying it was the best evidence they had. It is upon-these facts that the contention rests as to the admissibility of said copy. The copy being secondary evidence, the question is-whether foundation is laid for its admission.
The copy, being an impression taken in a letter-press, must have been a true copy, but to be admissible it was necessary to-show that the original, as thus copied, was mailed to the defendant, or received by him. Davis v. Mason, 4 Pick. 156. Either, fact might be proved by the positive evidence of a person cognizant thereof, or by circumstantial evidence.. These two kinds of evidence do not differ in degree though they may in weights The rule excluding evidence of a particular character, because better evidence of the facts exists, means higher evidence, in
That being established, and the original not being produced on notice, the copy was admissible to show the contents. In Dana v. Kemble, 19 Pick. 112, it was decided that where it was the usage of a hotel to deposit all letters left at the bar, in an urn kept for that purpose, whence they were sent almost every fifteen minutes throughout the day, to the rooms of the different .guests to whom they were directed, it will be presumed that a letter addressed to one of the guests, and left at the bar, was received by him. Hetherington v. Kemp, 4 Camp. 192, was an action on a bill of exchange, and the only question was, whether the defendant had received notice of its dishonor. Evidence was given by the plaintiff that he wrote a letter at the time,
In addition to this was the evidence tending to show that a letter written and mailed on the 23d, would in ordinary course
We are not called upon to decide that point because the defendant, who is the excepting party, does not claim that the court erred by submitting the question to the jury, if the evidence was admissible. We understand it was admitted, and presumably in correct manner, nothing appearing to the contrary. There is some ground for claiming a distinction on this point between the case at bar and those cited by the plaintiff, viz.: Moore v. Beattie, 33 Vt. 219, and Durgin v. Danville, 47 Vt. 95, where it was held that the decision of the trial court that the proof of the loss, if by legal evidence, was sufficient, was not open to revision in the Supreme Court. And in Dana v. Kemble, supra, Shaw, Ch. J., says: “ Whether secondary evidence shall be admitted, where proof is offered to show an original document in the hands of the adverse party, and which he does not produce on notice, is, in the first instance, a question for the court, to determine whether the evidence shall go to tHe jury; but when admitted, the jury are ultimately to pass upon its credit.” We, however, leave the point undecided for the reason stated.
Judgment affirmed.