Farnum v. Farnum

79 Mass. 508

Opinion

Metcalf, J.

The paper signed by Archbald & Company, dated April 14th 1856, and offered in evidence by the plaintiff, was rightly excluded. It was offered “ for the purpose of showing that the defendants,” F. M. Farnum and O. Farnum, “ were and did constitute but one party in the joint trade or business of buying and selling cattle, and for the purpose of raising a presumption that there was between the defendants a joint interest or partnership in the cattle trade or business down to the time when the 9th of March notes were made.” We are of opinion that the paper had no legitimate tendency to show such fact, or to raise such presumption. Frustra probatur quad probatum non relevat.

The court also rightly refused to receive in evidence the plaintiff’s memoranda of money paid by her to F. M. Farnum before the year 1837, and of her having given him the use of her farm for nine years, ending in 1847, on the same terms as those on which O. Famum was living on it at the time of the trial. The facts, thus offered to be proved, were far too remote from the inference proposed to be drawn from them, and would not have warranted that inference, namely, the improbability of F. M Farnum’s testimony that he asked the plaintiff to give him a note for the amount which he feared he should have to pay for O. Famum, &c. There is no natural connection, nor any natural repugnancy, between those facts and the statements made by F. M. Farnum in his testimony. See Best on Ev. §§ 90, 246.

But we are of opinion that evidence of O. Farnum’s having put property into the hands and possession of the plaintiff, in the years 1847, 1848, 1851 and 1855, was wrongly admitted for the purpose of showing that she signed the notes of March 9th 1855 for his sole benefit. That evidence, taken by itself, had no more tendency to show that she signed those notes for his sole benefit, than that she signed them for the joint benefit of him and F. M. Farnum. And the remark of the court to the jury, that this evidence would be immaterial unless the plaintiff applied the proceeds of that property to the payment of those notes, (of which there does not appear to have been any proof,) was not sufficient, we fear, to prevent a wrong effect on the jurors’ minds from the introduction of that evidence. See Ellis v. Short, 21 Pick. 142, and Norris v. Badger, 6 Cow. 455.

We are also of opinion that evidence was wrongly admitted to contradict a statement of O. Farnum, made on cross-examination. That statement related to a matter collateral and irrelevant to the issue on trial, and was evidently drawn from him for the mere purpose of contradicting him. This is not allowable. 1 Greenl. Ev. § 449, and cases there collected. Rex v Rudge, Peake’s Add. Cas. 232. Exceptions sustained.