Bunnel v. Taintor's administrator

4 Conn. 568

• Court: Supreme Court of Connecticut
• Decided: July 15, 1823
• Status: Published

Opinions

Hosmer, Ch. J.

The declaration avers, that the plaintiff and the said Taintor, on or about the 1st of March, 1810, became jointly interested in all the profits which might or should be made, on the purchase and sale of sundry large tracts of land, which had been previously purchased of Dow Smith and others, through the plaintiff's agency. The evidence, in support of this allegation, was a contract made between the parties, on or about the 1st of March, in the preceding year, to become equally interested in the profits which might arise from the purchase and sale of certain lands to be purchased of Dow Smith and others, and the sale of them, for their joint benefit. Between the averment and proof, there exists a material variance; the former importing an agreement to become interested in the profits of certain lands already purchased, and the latter, to share in the benefits to be derived from the purchase of lands in future.

The deposition of Elwell was correctly adjudged to be inadmissible. It had been committed to writing, by some person unknown, and was put into Elwell's hands, to procure it transcribed. He applied to Charles A. Townsend, requesting him to copy the writing, and the reason of the request being asked, said, "the deposition must not be in the hand-writing of the plaintiff, or his attorney." Accordingly, it was transcribed by Townsend, and became the deposition which was offered in evidence. The transaction, on the face of it, gives rise to a just inference, that the original manuscript was in the hand-writing of the party, or his agent; and from this it can be rescued only by shewing, either, who the writer was, or the necessity of its transcription. The words of Elwell, if admissible, leave no reasonable doubt, that the original writing was under the hand of the plaintiff, or his attorney. That the testimony was rightly rejected, I have not been able to bring my mind to question. Elwell, it is perfectly clear, was the agent of the plaintiff, either directly, or by the appointment of his attorney, to procure the writing transcribed; and acting in that character, when he applied to Townsend, the expression of the reason for making the copy in question, was a part of the res gesta, and as much within his agency, as the delivery of the paper to Townsend, or the communication of the plaintiff's request. On a subject of this nature, the court ought to be astute in ascertaining that the party is not making testimony for himself.

The case, in my judgment, is not within the statute of frauds and perjuries. The agreement between the parties was not “upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them;" nor did it contemplate any transfer of land, or any interest in land; (Bostwick v. Leach, 3 Day 476.) nor any thing annexed to the realty, as part and parcel of it, which was, by law, alone transferable by a deed. But the object of the contract was profits, as a compensation for services rendered, and that the purchase and sale of land should be made by Taintor, as in fact it was, through the plaintiff’s agency. The case may, not inaptly, be considered as a species of co-partnership, the fund on the plaintiff’s part consisting of services, and of property on the part of the defendant, of which he had a title legally evinced; the sale of which property, by the defendant’s deed, if it resulted in profit, was to constitute personal estate, divisible between the parties. I deem it quite unnecessary to pursue the subject further; as the provisions of the statute, most obviously, have not any bearing on the question, and as my opinion on the remaining consideration in the case, renders this merely a point of speculation.

By the statute of limitations, (p. 354. ed. 1808.) “No suit in law or equity shall be brought or maintained upon any contract or agreement, that shall hereafter be made, and not reduced to writing as aforesaid, but within three years next after entering into or making the same, or on any such contract or agreement heretofore made, but within three years next after a right of action thereon shall accrue.” The contract between the parties, was entered into long subsequent to the making of this law; and therefore falls within the first provision of the recited clause. From the motion, it appears, that the agreement between the parties was by parol, and made as far back as the year 1810; and this time is fully confirmed, by the depositions of Dow Smith and Luama Welton, which make a part of it. All the parol testimony was objected to, as being inadmissible; and the judge ruled it out, without having specified any ground for its exclusion. The motion cannot be explained ore tenus, nor corrected in any other manner than according to the salutary and necessary rule of the Court.

(a) For aught that I can discern, the objection founded on the statute of limitations, was the ground, or at least one of the exceptions, on which the judge made his decision. Undoubtedly, we do not sit here to review cases on the basis of principles unthought of at the trial, and which, had they been mentioned, might have received some legal counteraction. But, if an objection is presented before us, in the most general form, the Court cannot discriminate, for want of the means of discrimination, and must examine it, by every consideration, of which it is susceptible. This necessary procedure involves no hardship; as either party may always procure to be placed on the motion for new trial, the precise ground or grounds of determination.

The promise, on which the plaintiff has founded his action, was made more than ten years anterior to the commencement of the suit; and on examining the motion and depositions with the view of ascertaining whether any admission of the contract had been made within three years before the bringing of the action, I do not find, that any such fact ever existed. The case consists entirely of a parol promise, made many years ago, and of admissions at some period since; but that they were within three years before the suit was commenced, there is not the least foundation to affirm. The objection to the evidence was, of consequence, well taken, and the decision of the judge unexceptionable. This, necessarily, makes an end of the case.

Peters, J.

was of opinion, that the case was within the statute of frauds and perjuries; as the plaintiff, by virtue of the agreement, would derive a benefit by and through land. On the other points he concurred.

The rule referred to is a practical one, not in print, nor reduced to writing, within my knowledge, requiring, That no amendment of a motion for new trial, reserved for argument before all the Judges, be made, except by the Judge who tried the cause, from his minutes, on application made to him, at his chambers, for that purpose. Rep.