Bartlett v. Tarbox

1 Keyes 495

Opinion

Wright, J.

The defendant’s notes were transferred to the plaintiff in November, 1851, by. Elijah Brown, a former owner and holder. Two- defenses were interposed, First., that the plaintiff was not then owner, but that they were the property of Brown; and, second, a .set-off against Brown.. The.set-off claimed was the amount of a note'($283.83) made by one Huntington, which it was alleged the defendant sold to Brown in 1849, and which had been paid to the latter; also, for moneys received by Brown, to and for the use of the defendant, and money paid by the-latter to the former during the six years prior - to 1851; and also, for work. and. labor done and performed by the defendant for Brown, in the years 1846, 1847 and 1848. The finding of the referee disposes of both these defenses adversely, to--the defendant. -It is found that the plaintiff was, at. the. commencement of the action, the owner and holder , of the notes,‘having .purchased them-for a. valuable consideration; that at the. time of the sale of the Huntington note to Brown,, the defendant was indebted to him in a sum of money.exeeedingthe amount of the note, for certain professional services, toward the payment of which, by. an ageement between, .the parties, tlie note was to apply; and Brown, at the receipt thereof, in pursuance of the agreement, applied it in part payment of the defendant’s indebtedness; and that the defendant failed to prove any matter of set-off mentioned in his answer. The findings are not the subject of review in this court. It was competent for the Supreme Court to have reviewed the case, both upon the facts and the law, but our jurisdiction extends only to the determination of legal questions. We can not look into the evidence to determine whether the facts were or were not correctly found; but taking them as found by the referee, our. power is limited to the inquiry whether he deduced the proper legal conclusions from them. That there was no error in this respect is clear; and there' must be an affirmance of the judgment, unless some error was committed on the trial to the prejudice of the defendant.

The defendant’s counsel, in his points, insists that there were several errors of the latter description. Those pointed out will be briefly noticed:

1. Elijah Brown, the person who transferred the notes to the plaintiff, was sworn and examined as a witness in his behalf, the defendant objecting on the grounds of the defectiveness of the notice given of his examination, in not specifying the points on which he would be examined. The objection assumed that Brown was the assignor of the plaintiff’s demand within the meaning of section 399 of the Code, as the section read, and the law stood at the time of the trial; and that in all cases the ten days’ notice of the intended examination of such assignor must be given. But it is now settled that the person transferring a promissory note is not the assignor of á thing in action within the meaning of section 399. (Porter v. Potter 18 N. Y., 52), and that it is only in cases where such assignor is to be examined against an assignee, or an executor or administrator, that notice of his intended examination is required to be given. (Varlear v. Livingston, 3 Kern. 248 ; Bidwell v. The Astor Mutual Insurance Company, 16 N. Y., 263.) The witness, therefore, not being the assignor of the plaintiff, or if he was, the defendant not being an assignee, or ah executor or administrator, no notice of his intended examination was necessary. He was a competent witness for the plaintiff without any notice; and whether the one attempted to be served was defective in the particular suggested or not was entirely immaterial.

2. A witness by the name of Estes detailed the particulars of an interview between the defendant and Brown at Brown’s office, about the first of October, 1851, some two months before the transfer of the notes. The parties were trying to settle. The account books of Brown were produced and Ms account with the defendant looked over and examined as his book exhibited it. The defendant claimed against Brown $75 for political service's, in promoting his election to the office of district attorney, and that of his brother John to the office of sheriff, and this was all the claim he made. Estes, further testified: “ I recollect defendant said Brown’s account was all right, and he would allow it, if Browu would allow his.” This evidence was objected to by the defendant for the reason that the parties were negotiating a settlement; but the objection was overruled and the evidence received; it was not objectionable, at least for the reason assigned. The fact that the parties were attempting to settle was no ground for excluding any admission by the defendant of the correctness of Brown’s account against him. It was not an offer or proposition made for the purpose of effecting a settlement, but the declaration of a fact after looking over the items, viz.: that “ Brown’s account was all right.” The admissions of distinct facts during negotiation for a settlement are always competent evidence against the party making them. In this case the proof was extremely pertinent, as a distinct admission that all the items of account then looked over were correct; and also, as tending to show'that the defendant, then (some two months before the commencement of the action) made no claim or pretense that he had paid anything on the notes in suit, or that he had any set-off or claim against Brown, not credited on Brown’s books, except the claim for political services.

3. At the close of the examination of Estes and -Brown, the plaintiff-offered Brown’s hook containing the accounts looked over and examined by defendant as testified to by both those witnesses, not as evidence of any items not proved, but to identify the accounts, and as confirmatory testimony. This book had been in court and referred to on the examination of both Brown and Estes. The defendant objected to it as being incompetent and immaterial, and not being proved according • to the rules of evidence, and that the admissions in reference to it were made during an effort to settle. After receiving further proof that the book was the same produced at Brown’s office, that it contained the same charges,-and were all correct and were all looked over by the defendant, and there had been no alteration-in the account since such examination, the refereé overruled the objections, and decided to receive the book for the purposes offered. This was not error. The book had been loolcéd over by the defendant and the accounts admitted to be correct, on which were all the credits of the defendant,- which he claimed except for pretended political services. It showed a balance due to Brown over and above the notes in suit, as Brown had previously testified was the fact, of $50.56; but what these items were that went to make up such account, and which the defendant admitted was all right, could not be understood by the referee except by an inspection of the book. It was not offered as any evidence of itself, of the correctness of its contents, but to show what were the items of account referred to in the testimony of Estes and Brown. It is to be observed that the evidence as to the state of the accounts between Brown and defendant in October, 1851, was principally pertinent as bearing on the question, whether at the time of the transfer of the notes, Brown had not an unsettled account against the defendant -for-, professional services, more than enough to balance any claims of the latter against him, and which could be-the subject of a set-off".

4. The evidence tended to show that the note against Huntington, was by agreement, received by Brown from the defendant toward costs due him from the latter in the Angelí chancery suit, and that Brown was to make that application of a portion of its proceeds. With the view of showing the application of the note on these costs, the plaintiff offered Brown’s chancery register in evidence. It was objected to for the same reason as his account book before mentioned. I tblnk the evidence was admissible, but if otherwise; it could not possibly have prejudiced the defendant. Brown had previously testified to the application by him of enough of the note to satisfy the bill of costs in the Angelí suit, and the entry in his chancery register of the fact had been proved without objection.

5. The case states that before the termination of 'the trial, the plaintiff offered in evidence all the papers, receipts and bills of costs before proved and marked by the reféree, and that the defendant objected to them, on the ground that they were incompetent and immaterial evidence, and the acts and declarations of third persons. There was no force in the objection. There were receipts for money which Brown testified he paid for the defendant, and his bills of costs against him. After the bills of costs were proved without objection, they were properly produced and put in evidence. Had they been received as proof of the services, and the value, from the amount at which they were taxed, without other proof, there might have been some ground for the objection; but after proof of the services, and the value, and taxation, and the charges on the account book of such bills, and credits to the defendant of the amount belonging to him, and his declaration that the account was all right, it cannot be pretended that it was illegal to produce the bills as taxed.

6. It is insisted that the referee erred in receiving the evidence of the witness, John Brown, to contradict that of the defendant’s witness, Philip Gr. Sehermerhom. But a complete answer to the point, is that Brown’s testimony was received without objection. When the plaintiff first proposed to show by Brown, a conversation with Schermerhorn, with a view of impeaching or discrediting his testimony, the defendant objected on the ground that Schermerhorn’s attention had not been called to the alleged conversation, or the time or place of it; and the objection was sustained. At a subsequent stage of the trial Brown was recalled by the plaintiff, and testified to a conveisation with Schermerhorn the fall before the trial, in which the latter stated in substance, that he had never heard any conversation between Elijah Brown and the defendant, and should not swear to any; that he was not a witness in the case, nor did he know anything about it. It was this evidence to which no objection was •made by the defendant, that is now claimed, the referee wrongly received, blot having objected, but on the contrary consented to its being given, it is quite too late, on appeal, for . the defendant to allege its reception as a ground of error.

These were all the rulings on the trial now claimed to have been erroneous. I am of the opinion that the defendant’s exceptions to them were not well taken. The judgment of the Supreme Court should be affirmed.

All concurring,

Judgment affirmed.