96 F. 729 | 7th Cir. | 1899
The declaration in this case is in trover for the recovery of possession of a note and mortgage. The action was brought by James H. Farnsworth against Phinelan B.-Haber, but on the defendant’s motion, and showing that he had possession only as executor of the last will of Eliza O. Farnsworth, the payee of the note and mortgage, and that Ella Wright claimed to be the devisee and owner thereof under the will, the latter was substituted as defendant in the case, appeared and answered, and joined the plaintiff in a written stipulation for the trial of the case by the court without a jury. On suggestion of the death of James H. Farnsworth and of the appointment of Edward S. Bragg as administrator, the name of the latter as defendant in error has been substituted.
The court made the following special finding of facts, and gave judgment thereon for the plaintiff:
“(1) That one Eliza O. Farnsworth, then being the owner and in possession of the note and mortgage described in the declaration, made and delivered to her to secure the principal sum of five thousand ($5,000) dollars, with interest at five per cent., by one A. Ver Bryck, dated October 30, 1894, and recorded in the office of the register of deeds in Fond du Lac county, in the state of Wisconsin, on November 21, 1894, did on the 17th day of November, 1894, make and, execute before and in the presence of two attesting witnesses, who subscribed their names thereto as such, an assignment in writing, under her hand and seal, to James H. Farnsworth, the plaintiff, of said note and mortgage, which said assignment was in the usual form, without condition, reservation, or limitation, reciting the sum of five thousand ($5,000) dollars as a consideration therefor, and acknowledged the receipt thereof, which assignment was also properly acknowledged for record, and thereafter, on the same day, delivered the same to James T. Greene, to be held for said plaintiff. (2) That said James T. Greene, the depositary, was at the time of said delivery to him acting in some matters as the agent for Mrs. Eliza O. Farnsworth, and continued to act for her in such matters up to the time of her death, but during all such time kept the said note and mortgage and assignment separate and distinct from the papers of said Eliza O. Farnsworth in his possession, and not commingled or tied up in bundles or packages with them, but in an envelope separate and distinct by itself. (3) That James T. Greene, upon the presentation to him by one P. B. Haber, who was the original defendant in this action, on the 18th day of November, 1895, after the death of Mrs. Eliza O. Farnsworth, of the order hereinafter recited, delivered the said note and mortgage to him, but refused to surrender or give up the assignment of said note and mortgage, though requested so to do, and afterwards, on the 25th day of June, 1896, caused the same to be recorded in the office of the register of deeds in said county of Fond du Lae. (4) That Mrs. Eliza O. Farnsworth*731 died on tlie 15th day of November, 1805, and .Tames T. Greene died some time in 1897. after the recording of said assignment, which paper, with the official indorsement of its record thereon, came to the hands of the plaintiff from the representatives of Greene’s estate. (5) That defendant offered in evidence the following proof: That on the Kith (lay of November, 1895, Sirs. Eliza O. Farnsworth gave an order in writing, signed by her and addressed to Mr. Greene, as follows: ‘Please deliver to Mr. P. B. Haber the five thousand dollar note of Mr. A. Ver iiryck and a, note of Mr. Tretlow, as well as any and all papers and securities yon may hold in your possession belonging- to me, moneys included.’ And also that on the same day she, in her last sickness, from which she died on the 15th of November following, made a last will and testament, which had been duly probated, containing in it a purported bequest of 1he note and mortgage in controversy, in words and figures following: T give and bequeath to my beloved niece, Ella Wright, of Cincinnati, Ohio, five thousand dollars (85,000), the same being in one promissory note executed by Mr. A. Ver Bryck, and secured by a real-estate mortgage; said note being now in the possession of .lames T. Greene, of the city of Fond du Lac, Wisconsin, to whom ihe same was given at the time of my departure for the Smith in the year 1891. Any indorsements or assignments of said note are hereby canceled and revoked.’ Each and both of which recitals were received by the court qualiliedly, but neither of them was admitted as evidence to explain or vary the transaction of the assignment. (6) The following indorsement in the handwriting of .Temes T. Greene upon the envelope in which the said note, mortgage, and assignment were kept by said Greene was given in evidence by the defendant: ‘Nov. 17, 1894. Eliza, O. Farnsworth. Left with Tames T. Greene. In case of death, to be delivered to Tames H. Farnsworth or his heirs.’ And also an indorsement on the note in the handwriting of said Tames T. Greene: ‘Paid interest to Oct. 30, 1895, two hundred and fifty dollars ($250). Oct. 22, 1895. Eliza O. Farnsworth, per T. T. Greene.’ (7) The note and mortgage described in the complaint, with $500 interest paid thereon, has been deposited with the court, and is now in its possession, subject to irs order, and there is due upon it on the 30ih day of October, 1898, 8250 additional interest; and the value of the same is the principal amount stated in said note and mortgage, with the interest paid and due thereon as aforesaid. (8) That the plaintiff is the owner and entitled to the possession of said note and mortgage and interest paid thereon and secured thereby as aforesaid, and is entitled to a formal judgment for damages against the defendant, by reason of the technical conversion of the same by said defendant, for the value of the note and mortgage and interest paid thereon, and now in the custody of the eonrr, and since accrued thereon, with interest at live per cent., and also for his taxable costs and disbursements in addition thereto; the defendant having admitted possession, demand, and value, as stated in the complaint.”
The Inst clause was probably intended to be a statement of legal conclusion only. It should have been so expressed. U. S. v. Harris, 46 U. S. App. 653, 23 C. C. A. 483, and 77 Fed. 821. It is not to be regarded as a general finding upon the issues of the case. A finding may be either general or special, but not both. British Queen Min. Co. v. Baker Silver Min. Co., 139 U. S. 222, 11 Sup. Ct. 523; Wesson v. County of Saline, 34 U. S. App. 680, 20 C. C. A. 227, and 73 Fed. 917; Post’s Adm’r v. County of Hamilton, 46 U. S. App. 260, 22 C. C. A. 128, and 76 Fed. 208; Daube v. Iron Co., 46 U. S. App. 591, 23 C. C. A. 420, and 77 Fed. 713.
The assignment of errors contains many specifications which, under the rules applicable to trials in cases at law without a jury, are unavailing. They are to the effect that the court erred in making no finding of facts -which evidence admitted tended to prove, in refusing to make findings requested by the plaintiff in error, in refusing to modify the findings made in certain particulars as requested, in finding matters of evidence, and in that certain findings
The first, second, third and fourth specifications of error relate to rulings of the court during the progress of the trial, and must be considered. The dominant question in the case, evidently, is whether the assignment of the note and mortgage was delivered, or, to follow more closely the words of the finding, delivered to James T. Greene to be held for the plaintiff. As bearing on that question, it was important to determine whether, when the instrument was placed in his possession, Greene was Mrs. Farnsworth’s agent, and, if so, what was the scope of his agency. On that point Haber, the original defendant in the case, called as a witness for the defense, had testified to the effect that Mrs. Farnsworth had a property of about 114,000, and that nearly all her business was intrusted to Greene. On cross-examination the witness was asked if he had not claimed that he was her agent and transacted her business, and, having answered “No,” was shown a letter, the writing of which he admitted, and with reference to a particular passage, which alone he was allowed to read, was asked, “In that letter did you not state that she (meaning Ophelia Farnsworth) wanted to make you the residuary
“Defendant’s Counsel: AVo ask an order from tlie court directing him to he compelled io turn it over. (.Letter handed to court.) Court: I do not find anything in- the lottei; that ⅛, any portion that I have looked at— Defendant's Counsel (Air. Cash): If Gen. Bragg is so technical that lie is going to insist that wo look only at a little portion, I think we a.re entitled to have all the testimony stricken out he has asked upon this subject. Court: This inquiry is no: directed to the, use of tilts Letter In any form as evidence. It is simply as a question would ho asked of the witness, whether he had said to John or wrote him so and so. That is the end of the inquiry, so far as impeaching testimony is concerned. The witness admits (lie fact of the statement, whatever it may be worth, but the letter which ihey have in their hands X think you are not entitled to have produced as a whole. You can examine that portion of it on which he made the inquiry. (Defendant excepts.) Gen. Bragg: That, is the only thing connected with it. Court: They have a right to examine that portion of (ho letter. Counsel for defendant declines to look a t that portion.”
Our opinion is tliat the ruling was erroneous. If the witness had been asked if, in a certain conversation, he had not said so and so, and had answered “Yes,” it would have been competent to inquire whether in the same conv ersation he said something further, by which what had been admitted would be qualified or retracted; and, on the same ground of reasonableness, when the witness admitted the presence in a letter that he had written of a statement which, alone and unexplained by other parts of the letter, was in conflict with his testimony, it was the privilege of counsel of the party in whose behalf the witness liad testified to inspect the letter for other statements affect mg the moaning of the expression admitted, whether to be found in the immediate context or in other parts of the letter. No statement by counsel in possession of the letter concerning the relevancy of other parí s should be allowed to prevent the inspection. If the witness had denied or had not admitted the part of the letter shown, lie could not have been examined concerning the contents of the letter, nor could opposite counsel in that case have been entitled to look at the paper. Greenl. Fv. §§ 88, 463; 1 Phil. Ev. pp. *575, *576. It cannot be said that the testimony or the credibility of the witness in this'respect is in itself immaterial, or is made so by other findings unaffected thereby. The case is in a narroAV compass, turning upon the question whether the assignment was delivered, and that depending finally upon the' more narrow question whether it was delivered to Greene to be held for the plaintiff. Upon that, question the recording can have no bearing, because not done until after Mrs. Farnsworth’s death. There