Hardwick Savings Bank & Trust Co. v. Drenan

Supreme Court of Vermont

Hardwick Savings Bank & Trust Co. v. Drenan

48 A. 645, 72 Vt. 438, 1900 Vt. LEXIS 162

CourtSupreme Court of Vermont

DecidedSeptember 19, 1900

StatusPublished

Cited by6 cases

This text of 48 A. 645 (Hardwick Savings Bank & Trust Co. v. Drenan) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardwick Savings Bank & Trust Co. v. Drenan, 48 A. 645, 72 Vt. 438, 1900 Vt. LEXIS 162 (Vt. 1900).

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Opinion

Start, J.

The defendant signed the bond in suit as surety; and he claimed that it was agreed between him and the principals to the bond that the bond should not be used until it was signed by another surety, and that this agreement was known to the plaintiff. The defendant offered to show that, after the bond was accepted, and before the commencement of this suit, the plaintiff’s treasurer told the defendant’s attorney that the plaintiff took an assignment of a life insurance policy and a chattel mortgage in place of another signer upon the bond. The offer was excluded and the defendant excepted. In this, there was no error. The treasurer was transacting no business respecting the bond at the time the declaration was made; and it does not appear that he had authority to take the bond, or anything to do with the taking of it, nor does it appear that he had any personal knowledge of the fact sought to be shown by his declaration. Also, the declaration was made long after the negotiations relating to the taking of the bond had been ended and the bond accepted by the plaintiff. Under these circumstances, the declarations of [440]*440the plaintiff’s treasurer, as such, were not binding upon the plaintiff, nor were they evidence of the fact that was in issue respecting the plaintiff’s knowledge. Tower v. Rutland, 56 Vt. 28; Mason v. Gray, 36 Vt. 308; Lyndon Mill Co. v. Lyndon Institution, 63 Vt. 581.

The bond when produced in court had no seals upon it; but the plaintiff’s testimony tended to show that it was originally sealed with paper taken from the gummed margin of postage stamps, and that the seals had been lost without the fault or agency of the plaintiff. The defendant introduced evidence tending to show that the bond was not sealed when he signed it; and, upon this issue, he produced in court a sheet of postage stamps and offered them in evidence, to show to the jury how well the margin of the stamps are gummed- and the size of the seal that can be taken from them. He also offered to adhere the margin of the stamps to a piece of paper in the presence of the jury, and when dried to let the jury remove them. This offer was properly, excluded. The offered test or experiment lacked the similarity of circumstances and conditions necessary to make it admissible. There was no offer to show that such margins, when once adhered to paper, will remain unaffected by time, or the conditions under which they are kept or handled. If such testimony is ever admissible, which we do not decide, the test or experiment must be under similar conditions and circumstances. Congdon v. Howe Scale Co., 63 Vt. 255.

The defendant claimed that the words, “ And one Life Insurance Policy of G-. A. JDow’s ”, were not in the bond when he signed it, and, upon this issue, offered to show that before How said anything to the plaintiff about using the policy, he, Dow, had offered the policy to other parties to secure them for signing the bond. It is difficult to see how this evidence could have any bearing upon this issue; but, if it had, it was properly excluded, for the reason that there was no offer to connect the plaintiff with Dow’s act. He was not the plaintiff’s agent, and what he [441]*441•did. and said when none of the plaintiff’s officers were present ■could not be shown:'

Judgment affirmed.

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Start, J.

The defendant signed the bond in suit as surety; and he claimed that it was agreed between him and the principals to the bond that the bond should not be used until it was signed by another surety, and that this agreement was known to the plaintiff. The defendant offered to show that, after the bond was accepted, and before the commencement of this suit, the plaintiff’s treasurer told the defendant’s attorney that the plaintiff took an assignment of a life insurance policy and a chattel mortgage in place of another signer upon the bond. The offer was excluded and the defendant excepted. In this, there was no error. The treasurer was transacting no business respecting the bond at the time the declaration was made; and it does not appear that he had authority to take the bond, or anything to do with the taking of it, nor does it appear that he had any personal knowledge of the fact sought to be shown by his declaration. Also, the declaration was made long after the negotiations relating to the taking of the bond had been ended and the bond accepted by the plaintiff. Under these circumstances, the declarations of [440]*440the plaintiff’s treasurer, as such, were not binding upon the plaintiff, nor were they evidence of the fact that was in issue respecting the plaintiff’s knowledge. Tower v. Rutland, 56 Vt. 28; Mason v. Gray, 36 Vt. 308; Lyndon Mill Co. v. Lyndon Institution, 63 Vt. 581.

The bond when produced in court had no seals upon it; but the plaintiff’s testimony tended to show that it was originally sealed with paper taken from the gummed margin of postage stamps, and that the seals had been lost without the fault or agency of the plaintiff. The defendant introduced evidence tending to show that the bond was not sealed when he signed it; and, upon this issue, he produced in court a sheet of postage stamps and offered them in evidence, to show to the jury how well the margin of the stamps are gummed- and the size of the seal that can be taken from them. He also offered to adhere the margin of the stamps to a piece of paper in the presence of the jury, and when dried to let the jury remove them. This offer was properly, excluded. The offered test or experiment lacked the similarity of circumstances and conditions necessary to make it admissible. There was no offer to show that such margins, when once adhered to paper, will remain unaffected by time, or the conditions under which they are kept or handled. If such testimony is ever admissible, which we do not decide, the test or experiment must be under similar conditions and circumstances. Congdon v. Howe Scale Co., 63 Vt. 255.

The defendant claimed that the words, “ And one Life Insurance Policy of G-. A. JDow’s ”, were not in the bond when he signed it, and, upon this issue, offered to show that before How said anything to the plaintiff about using the policy, he, Dow, had offered the policy to other parties to secure them for signing the bond. It is difficult to see how this evidence could have any bearing upon this issue; but, if it had, it was properly excluded, for the reason that there was no offer to connect the plaintiff with Dow’s act. He was not the plaintiff’s agent, and what he [441]*441•did. and said when none of the plaintiff’s officers were present ■could not be shown:'

Judgment affirmed.

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48 A. 645, 72 Vt. 438, 1900 Vt. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardwick-savings-bank-trust-co-v-drenan-vt-1900.

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