Yankton County v. Rossteuscher

1 Dakota 125 | Supreme Court Of The Territory Of Dakota | 1875

Barnes, J.

This action was commenced in Yankton county, and by change of venue removed to Bon Homme county, and there tried. The jury found for the plaintiff. Various exceptions were taken in the court below upon the admission of testimony and refusal of the court to instruct the jury as requested by defendant. This cause is now in this court for review. It is alleged in plaintiff’s complaint that in June, 1865, the defendant was the register of deeds of Yankton county and clerk of the board of county commissioners of said county, that while acting as such clerk he caused to be issued by said board a county warrant or order for the sum of ninety-eight dollars, payable to one A. P. Hayward; that the defendant procured said order to be issued for the pretended purpose of paying that sum to the firm of Mills & Co. for books theretofore purchased of said firm for Yankton county; that defendant did indorse said county order for the purpose of paying said Mills & Co., but in fact presented the same to the treasurer of said county and received the amount thereof of said county, for which sum so received from said county by said defendant, this action is brought by said county against said defendant.

The defendant specifically denies every material allegation of complaint. This cause was tried at Bon Homme, June 10, 1873, BabNes, J., presiding. Upon the trial of this cause the plaintiff offered in evidence a letter in the words and figures following. To the reception of this letter the defendant objected. The court below overruled the objection and allowed the letter to be read in evidence. To this ruling the defendant then and there excepted.

COPY OK LETTER.

Yankton, D. .T., 3d May, 1865.

Messrs. Mills & Co.

Gents : There has been considerable talk among the county and other officials with regard to the new books; (mark me) the fault is only against the county clerk (who gave me the order) and not with your prices or the quality of the books. But the books are altogether too extensive for our county. And several have been to me and advised me to countermand the balance of the order and leave it in the hands of the clerk, which I will now do; but will do my best to get him to do the fair thing with you. I am, respectfully,

Yours in haste,

A. F. Hayward.

The fact that at the time the ninety-eight dollar order was issued to Hayward to pay Mills & Co., defendant was clerk of the board of county commissioners is admitted upon the trial in the court below. 80, too, the fact that the witness, Hayward, the writer of the foregoing letter, was the duly appointed deputy clerk of said board of county commissioners, by appointment from the defendant, is fully established. The fact too that defendant knew that the ninety-eight dollar order was drawn in favor of Hayward to pay for the books purchased of Mills & Co., is fully and clearly established. The theory of the plaintiff is this: that the defendant purchased the books, for which this ninety-eight dollar' order was given, of Mills & Co., for Yankton county, and that the order was drawn in favor of Hayward, who was then defendant’s deputy, to be passed over to Mills & Co. in payment for the books.

■ The defendant’s position is this: that Hayward (not as deputy clerk, acting in the.place and stead of defendant) but acting for himself and on his own account, purchased the books in question from Mills & Co. for Yankton county, and afterwards sold them to defendant for the county; and that this ninety-eight dollar order was drawn in favor of Hayward t'o pay him (Hayward) for the books. That the order therefor was the individual order of Hayward, and thereafter, in the ordinary course of business, was purchased by defendant of Hayward.

Without examining the testimony in this case, proving or disproving either theory, it is sufficient to say that there is some evidence tending to sustain tlie theory of defendant. Hayward was a witness upon the trial of this canse, and is not a party to this suit. And we are at loss to discover upon what view of this case the court below could have allowed the foregoing letter as evidence in this case. It will hardly be claimed that it was an official act of Hayward, as defendant’s deputy, and is, therefore, binding on defendant, and is to be treated as defendant’s own act, the same as though written by defendant himself. The character of the letter itself is inconsistent with this view of the case. We are, therefore, clearly of the opinion that this letter was improperly received in evidence.

A more difficult question for this court to determine, however, is this: could this improper evidence, by any fair and-reasonable construction, have prejudiced defendant? It is not enough that the evidence is improper; but before reversing judgment or ordering a new trial, the court must be satisfied that the improper evidence may have prejudiced the complaining party. While on a careful examination of that letter we think it tends quite as strongly to establish the defendant’s theory of this transaction, as it does to establish that of the plaintiff, it is impossible for the court tp determine what interpretation the jury put upon it when they viewed it. And as it is apparent that the jury may have fairly and reasonably understood that letter, that it injuriously prejudiced the defendant, we think a new trial must be granted.

This case comes fairly within the rule as recognized and declared in the cases cited by defendant’s counsel, under his third and fifth point, to wit: (47 N. Y., 186; 43 N. Y., 200; 4 Wait’s practice, 239, and cases there cited.) Without extending this investigation further we think that improper evidence' has been admitted, to which the objecting party has excepted.

The appellate court will not inquire whether the improper evidence thus received did in fact prejudice the objecting party, but will determine whether it could reasonably and properly have been so understood by the jury as to prejudice the objecting party. Applying that rule we think the jury could reasonably have placed such construction upon the letter of Hayward, that the defendant would be prejudiced by its reception.

It is unnecessary to examine other questions presented by the bill of exceptions. As for the reason above stated, if for-no other, a new trial must be granted.

Rule accordingly.