Bartlett v. Hoyt

33 N.H. 151

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1856
• Status: Published

Opinion

Sawyer, J.

It is now understood to be a well settled rule of practice, that objections of a formal character to a deposition which has been once used upon the trial of a cause, without objection, are to be considered as waived. The caption of a deposition, when it¡ has been produced in court, and the deposition which it contained, has been permitted to be used unquestioned, has performed its office, and it would seem to be entirely idle to require that it should be carefully preserved, again to be submitted to the inspection of the adverse party, in order that he may have another opportunity to question its sufficiency, when he has already had that opportunity, and has in effect conceded it to be sufficient. The objection to Clark’s deposition, that there was no caption produced, was properly overruled.

The objection to the deposition of Bangs, that it is not certified in the caption at what hour the taking commenced, was also properly overruled. The statute does not, in terms, require that this should be certified. If it is required, it is because it is implied in the requirement of the statute that the time of the taking shall be certified, and that this must be held to mean the time of commencing the taking. We understand, from the objection as taken, that it is stated in the caption that the deposition was taken at a specified hour, but that it is not stated that the taking commenced at any specified hour. The caption, however, follows the language of the statute, and this we think, in this particular, to be sufficient.

Nor can the objection be sustained which is founded on the facts in relation to this deposition having been put on file, taken therefrom without being used at the first trial, and not restored to the files of the clerk. We are not aware of any rule or practice which forbids the use of a deposition on the second trial, whether on file or not, when the deponent is not in attendance as a witness, because it could not be used at the first, by reason of his then being in attendance, or for any other reason which does not equally exist at the second. If inconveniences result from the use of depositions which have not been filed, or kept on file with the clerk, or which were not used at a former trial, the corrective should be applied in the form of a rule established and promulgated for the regulation of future practice. It would be unwarrantable to administer it in the form of a rule for the first time, announced by applying it retrospectively.

Another objection, of a less technical character, taken to the depositions of both Bangs and Clark, is, that they were interested witnesses. The ground of the objection, as suggested in the argument for the defendant, is, that they, being charged with the care and custody of the hay for safe keeping in the freight-house, are liable for the wrongful delivery, or liable over to the company for negligence, if the company are responsible for the wrongful delivery. That the company are responsible to the plaintiff for such wrongful delivery by their servants, is unquestionable. But aside from the liability of Bangs, arising from his unlawful intermeddling with the hay by delivering it to the defendant, they are not responsible in any form to the plaintiff. There was no privity between them and him in respect to it; no express or implied agreement, and no relation like that of bailor and bailee out of which grew a duty owing from them to him. The act of Bangs, in conjunction with the defendant, in taking the hay from the freight-house and sending it to Boston, constituted them joint tort-feasors as to the plaintiff, and he might have pursued his remedy against them jointly, or against either or both severally. In a suit against either, the other is a competent witness for either party; the judgment to be recovered neither discharging such other from liability, nor contributing to subject him to liability. Clark had no agency in the wrongful deliyery, and had not, therefore, like Bangs, made himself liable for any positive acts of unlawful intermeddling with it. If either is liable at all beyond the liability of Bangs, for the wrongful delivery, and thus converting the property, it must be only to the company for their negligence, resulting in a loss to the company, for which they may be answerable over. But it is clear that the judgment in this suit could not be used in their favor, if for the plaintiff, nor against them, if for the defendant, in any suits which might be brought against them by the company. Nor does a recovery by the plaintiff relieve them from any existing liability, nor a recovery by the defendant fix upon them any liability to which they would not otherwise be subjected.

The depositions of Bangs and Clark were, therefore, properly admitted.

The objection to the form of the question proposed to G. Ñute, as being leading, was not well taken. A question in the form, ££ whether or not,” may, nevertheless, in some' cases be objectionable as leading. The nature of the question and its subject matter may be such, that, framed in a particular way, it will suggest to the mind of the witness the answer desired, as well if commenced in the alternative form, ££ whether or not,” as without it. The question objected to, however, does not so clearly and distinctly suggest the answer desired as to render it liable to the objection. It would be difficult, perhaps, to propose the question in terms better adapted to avoid leading the mind of the witness to the answer, without making it so general as to fail to direct his attention to the particular matter in relation to which his information was sought.

It was within the discretion of the court to submit to the jury the question upon the evidence presented, whether the statement of the defendant, testified to by G. Nute, was an admission of a fact, and thus competent, or a mere offer or proposition for a settlement, and therefore incompetent to be submitted to* the jury as substantial evidence in the case. There is no distinction in this respect between this question and the preliminary one which arises upon the objection that the witness is interested. Either may depend upon a state of facts in relation to which the evidence may be conflicting and the result doubtful. In all such cases the preliminary question may well be submitted to the jury, as the proper tribunal to weigh conflicting evidence upon questions of fact. The instructions given to the jury upon this point were correct; Downer v. Button, 6 Foster 344; and it is to be presumed those instructions were followed.

It is true, it may be impossible to ascertain whether the jury did or not, in passing upon the preliminary question, apply the principles contained in the instructions ; but this is equally true in every instance of a mixed question of law and fact, submitted to the jury with proper instructions as to what the law upon the question is. In the case of a question of interest, depending upon doubtful facts, it can no more be known whether they applied the law correctly than in this. Whether a witness is interested upon this or that given state of facts, is a question of law for the court. Whether the facts exist as claimed by one party or the other, is a question of fact, which, when presented in the form of the preliminary inquiry, as to the competency of the witness, may be determined by the court, or, in the exercise of their discretion, by the jury ; and the question of law is as fully settled by the court in giving the proper instructions to the jury, as to the principles of law by which they are to be governed in the event of their finding the facts this way or that, as it would be if the court should undertake to settle the entire preliminary question without the intervention of the jury.

In this case the question whether the evidence was admissible was not submitted to the jury ; the court in their instructions having anticipated that question by informing them that it was not admissible if, in fact, they should find upon the evidence that the statement was merely an offer or proposition for a compromise, and that it was admissible if it amounted to an acknowledgment of an existing fact. Whether it did or not amount to this, was the only question submitted to the jury; and this was one of fact proper for them to determine, if the court, in the exercise of them discretion, thought fit to refer it to them.

The exceptions taken to the testimony of E. Nute were also properly overruled. The statement by the plaintiff of the reason why he refused to receive of the witness the money for the ten bales of hay, was a part of the res gestee; i declaration made at the time of an act done, going to qualify and explain the act, and coming within the principle recognized by the cases in our own Reports upon that subject. Sessions v. Little, 9 N. H. 271; Hadley v. Carter, 8 N. H. 40; Hersom v. Henderson, 3 Foster 505. If the fact that the money was offered to him, was at all material for the defendant to show, then it was competent for the plaintiff to prove all that was said and done at the time, in connection, giving a character to it. His declarations would not, of course, be evidence of the fact that the hay was not his, and it is to be supposed that proper instructions were given to the jury upon that point.

It is a familiar principle that if the memory of a witness is at fault in relation to matters of which he made a written memorandum at the time of the transaction, which memorandum he knows to be correct, he may refresh his recollection by recurring to the memorandum, and then testify to the facts there stated, as existing in his recollection; and this, too, whether the recurrence to the writing actually revives the recollection of the facts or not. Nor is it necessary that the writing should be by the hand of the witness, if it existed at the time of the transaction, and can be clearly identified by him, as a paper which he then examined, while the facts were fresh in his recollection, and which he then knew contained a correct statement of the particulars mentioned in it. Jacob v. Lindsay, 1 East 460; Burrough v. Martin, 2 Camp. 112; Burton v. Plummer, 2 Ad. & Ec. 343; 1 Greenl. Ev., sec. 437, note 2.

In Haven v. Wendell, 11 N. H. 112, it was held that a memorandum, made by the witness at the time of the transaction, for the purpose of preserving the memory of it, which failed to revive the recollection of the facts in his mind, might go to the jury as evidence, in connection with his statement that he had no doubt the paper stated the facts truly, and he should have sworn to them, as there stated, at any time afterwards so long as they were retained in his recollection. The same doctrine is asserted in Watson & a. v. Walker & a., 3 Foster 471. Such is the rule also in New York. Clark v. Voice, 15 Wend. 193; Merrill v. Railroad, 16 Wend. 586. The American cases go beyond the English in making the paper evidence to the jury. In this case the only use made of the papers was to permit the witness to consult them for the purpose of aiding his memory. His testimony was, that at the times of receiving the hay he made examination of the quantities, compared them with the amounts stated in the bills, and then knew that the bills were correct, in reference to the amounts, and their dates, and that he could identify the bills by memoranda then made by him upon them. The case, then, was clearly within the recognized rule, and the witness was properly permitted thus to refresh his recollection. The case does not find that the court refused to permit them to go to the jury upon the motion of either party. No question, therefore, arises upon that point.

The fact that Bangs pointed out to the defendant the ten bales as his Chesley hay, was an immaterial one. It could furnish no justification to the defendant for taking the plaintiff’s hay, that his co-trespasser misled him. He was bound to know that he was taking other hay than his own, although informed to the contrary by the person who, as servant of the company, had the charge of his hay, and who, therefore, in reference to that hay, was as much the agent and servant of the defendant himself, as he was of the plaintiff in reference to his hay.

So, too, as to the statement made by Bangs to Clark on the day following that on which the hay in question was taken ; if the fact that it was thus pointed out by Bangs was immaterial, the subsequent statement of Bangs, that he had so pointed it out, was also immaterial. This was also objectionable, as hearsay, and inadmissible on that ground. It does not appear from the case that it was offered to contradict either Bangs or Clark. On the contrary, it must be understood from the case that it was offered as direct evidence in support of a substantive part of the defence. If objection was taken to it as inadmissible, and it was not in fact of a character proper to be received, as direct and substantive evidence for the defence — no suggestion being made to the court that it was offered for the purpose of contradicting a witness who had testified — it cannot be supposed that their attention was turned to the inquiry whether it was or not of a character to contradict him; and without such suggestion it was properly rejected.

The evidence offered by the defendant of the quality of the hay cut on the Durham town farm in 1851, and taken to the railroad in the winter following, was too general and vague to prove the quality of the hay in question. It might all be true in reference to that hay generally, and still have no application to this particular portion of it. The jury could only conjecture that possibly it might have such application.

The instructions requested of the court were properly refused. The taking of the hay by the defendant, and sending it to Boston as his own, was a conversion, it not being delivered to him by one having authority so to deliver it. The delivery by the company, or their servants, to the wrong person, is a conversion by them. 2 Greenl. Ev., sec. 642, and the authorities there cited. Where the goods come lawfully into the defendant’s hands, as by finding, or upon a bailment, or delivery by the owner, a demand is necessary ; but where the taking is tortious, it is unnecessary.

In Hyde v. Nolle & a., 13 N. H. 494, Parker, C. J., says : “ The purchase by the defendants of the chattels in question, taking possession as they appear to have done, and holding them as their own property, was a conversion. They received the possession from one who had no authority to deliver it to them, under a sale which purported to vest the property in them, and they by the purchase undertook to control the chattels as their own property. This was an assumption of power over them inconsistent with the rights of the plaintiff. Purchasing the property from one who had no right to sell, and holding it to their own use, is a direct act of conversion, without a demand and refusal. Their possession was unlawful in its inception, by reason of the want of authority in their vendor to make the transfer.”

Here was an assumption of ownership over the property, equally inconsistent with the rights of the plaintiff, unauthorized by him, or by any person having authority thus to intermeddle with it. It is entirely immaterial that the unlawful taking was through mistake. Sinclair v. Tarbox, 2 N. H. 135; Sargeant v. Gile, 8 N. H. 325; Flanders v. Colby, 8 Foster 34.

If the plaintiff, knowing the fact that Nute had sold the ten bales substituted by the defendant in place of those of the plaintiff, taken by him, had received pay for those specific bales as sold by Nute on his account, understanding that he was thus receiving the pay for those identical bales, this would undoubtedly have constituted a ratification by the plaintiff of the exchange. But its force, as proving such ratification, would depend entirely upon the knowledge of the plaintiff that he was receiving pay for the identical bales so substituted. If ignorant of the exchange, or if, knowing it, he nevertheless erroneously supposed that the ten bales of poor hay, for which he refused to receive pay, were the same bales which the defendant substituted for his, and, -under that erroneous belief, in fact received pay for those which were so substituted, still such receipt would not have the slightest tendency to prove that he assented to the exchange. It might, then, be true that the ten bales of inferior hay, received by Nute, were not the defendant’s hay, and that the plaintiff had in fact received the money which arose from the sale of the bales substituted by the defendant, without his doing any thing indicative of an assent to the exchange. Whether he honestly understood the ten bales of inferior quality, sold by Nute, to be the identical bales substituted by the defendant, and was therefore sincere in the reason assigned by him for refusing to receive the money which arose from their sale; or whether he understood that the ten bales substituted by the defendant were in fact included in those for which Nute accounted to him, and thus dishonestly attempted to pass off his own ten bales of poor hay for the defendant’s ten of a better quality, were material questions of fact, bearing upon the plaintiff’s knowledge of the identity of the bales, and they were open to the defendant upon the trial. Whether they were or not raised by him before the jury, the court could not properly have given the instructions solicited on this point, upon the evidence in the case. They would have proceeded upon the ground that it was enough, in order to show a ratification of the exchange by the plaintiff, that he received pay for those which the defendant substituted, although there was evidence tending to show that, if he did so, it was done ignorantly, and with the understanding on his part that he was not receiving pay for them. The instructions solicited were that the action was not maintained, unless the plaintiff show that the ten bales of inferior quality, sold by Nute, were in fact the defendant’s bales, substituted by him; whereas the action on its true grounds is maintainable as to this point, even if the inferior bales sold by Nute were not the defendant’s, provided only the plaintiff in his settlement with Nute acted on the honest supposition that they were his, of which there was evidence competent to be submitted to. the jury.

The instructions given were correct, and were such as the circumstances of the case required.

The exceptions upon all the points in the case must be overruled, and

Judgment rendered on the verdict.