Fiske v. Cole

25 N.E. 608, 152 Mass. 335, 1890 Mass. LEXIS 68

• Court: Massachusetts Supreme Judicial Court
• Decided: October 24, 1890
• Status: Published

Opinion

W. Allen, J.

1. The conversation between Elisha B. Cole and Mr. Lathrop in regard to the notes, at the time they were shown to Mr. Lathrop, was offered to show the time of the occurrence, which was material. It is possible that something may have been said during the interview that might be competent in connection with other evidence to fix its date; but it is no more possible that it should have occurred in a conversation in regard to the notes, than in regard to some other subject. The offer was to put in the whole conversation relative to the notes and inventories, without pointing to anything which tended to fix the time when it occurred. There appears no reason to- suppose that anything was said which would help to fix the time other than what was in evidence; namely, that the visit was with reference to commencing an action between other parties, and that the action was commenced soon after.

2. The inventories made by the first named defendant, or her agent, were inadmissible. They were mere declarations of the party or her agent, and no more competent than oral declarations to the same effect would have been.

3. We see no ground upon which the conversation between Harwood and Cole, in regard to the notes at the time when it was testified that they were shown to Harwood, was competent. The material fact to be proved was that the notes were in existence at that time. The fact that witnesses testified that they then saw the notes in existence, does not make their declarations in regard to the notes competent. The offer was to prove the whole conversation, on the ground that whatever was said about the notes by the witnesses at the time was competent as part of the res gestee. We think that the evidence was properly excluded. Exceptions overruled.