Kimball v. Bellows

13 N.H. 58

Opinion

Upham, J.

Footnotes

•

*

The' defendant in this case contends, if he is liable at all, he is liable only on a contract relating to the assignment, release, or discharge of the several claims held against him by his creditors in Connecticut; and that unless these entire claims are taken up, the plaintiff is not entitled to recover.

It is objected, that evidence tending to show that William Cooper was one of the Connecticut creditors, was improperly rejected by the court, and that the verdict is therefore erroneous. This evidence consisted in two counts in the original declaration, which are now stricken out; alleging if the plaintiff would procure an assignment, of a bond, given by the defendant to William Cooper, the defendant would pay the plaintiff the amount secured by the bond. The introduction of these counts, as originally set forth in the declaration, and proof that testimony was offered on the former trial to sustain them, is contended to be competent evidence of an admission that Cooper was one of the Connecticut creditors.

The exception raises the question as to the effect of various pleas, or of declaring in various counts, where the counts or pleas conflict in any degree with each other. The general rule is well settled, that where there are several counts in the same declaration, or a variety of pleas, an allegation in one count or plea cannot be insisted upon by the adverse party as an admission of a fact for a purpose distinct from the proof of such count or plea. An exception is taken to the application of this principle in Massachusetts, in actions of slander, where the general issue is plead, and a special plea, admitting the words spoken, with a justification. 15 Mass. Rep. 48, Jackson vs. Stetson & ux., & 1 Pick. 1, Alderman vs. French ; but in the latter decision it is remarked by Mr. Justice Jackson, that “ there is perhaps no other case except that of slander, in which the forms of pleading could give rise to this question.” A further exception is made in 2 N. H. Rep. 87, Cilley vs. Jenness ; but Mr. Justice Woodbury, in delivering the opinion of the court in that case, attempts to place it on totally different ground from the decisions in Massachusetts, which he regards “ as contrary to immemorial practice, as well as authority.” Wo can hardly say that we are satisfied with either of these exceptions. It is quite clear that the general rule, as laid down by us, is rigidly maintained by most courts; audit is questionable whether any exception is admissible.

On a declaration in assumpsit, by a landlord against his tenant, for abroach of good husbandry, where there was one count which professed to be founded on a special written agreement, and a second on an implied contract, it was holdcn by Le Blanc, justice, at Lancaster spring assizes, that the defendant could not insist upon the first count, as evidence that a written contract existed, so as to impose upon the plaintiff7 the necessity of producing it. Cited by Starkie, and by Mr. Justice Cowen, in his notes to Phillips’ Evidence. 1 Stark. Ev. 295; 2 Cowen’s Phillips 445.

In 7 Wend. 301, Brown vs. Feeter, it is held that one count is in no sense material to another, unless there be a reference from one to the other; and that this is especially the case if a nolle prose.qui be entered on the count sought to be used as evidence; and in 12 Wend. 110, Keeler vs. Bartine, it is held that where a plaintiff' declares in one count upon a promissory note, and in another for moneys paid: and, after a plea of actio non accrevit infra to the count upon the note, enters a nolle prosequi as to such count, such discontinuance is no admission of the truth of the plea; its only effect is to strike the count, and the pleadings applicable to it, from the record. The same doctrine is held in 7 Crunch 176, Hughes vs. Moore. See, also, Gould’s Pleading 432.

The necessity of the case seems to require this rule of law. The plaintiff must often allege his contract in various modes, each differing from the other. It is often impossible for him to tell how his evidence will meet his case; whether as applicable to one count or another; and his counts may not only differ one from the other, but may be contradictory in a greater or less degree. An attempt may be made at one term to sustain one count; at another term, a count materially different. One count cannot be adduced as evidence against another; neither can the fact that evidence was offered at one term to sustain such count, be regarded as an admission by the party, on a subsequent trial of the same suit, that the facts as charged in such count are true, and that he therefore cannot proceed on a different count to trial.

The rule of law on this subject is the same as that relative to pleadings. Where there are several distinct pleas, the plaintiff cannot use one plea of the defendant, for the purpose of proving a fact which the defendant denies in another plea. Where there are several issues joined, an admission involved in one does not operate as an admission in relation to any other. 1 Stark. Ev. 295, 389; 5 Taunt. 228, Harrington vs. MacMorris.

Mr. Justice Buffer remarks, in Kirk vs. Nowell, 1 Term Rep. 125, that “ there never was such an idea before entertained, that one plea might be supported by what was contained in another. Each plea must stand or faff by itself; they are as unconnected as if they were on separate records.”

It is also holden that an agreed case, made on application for a new trial, is not evidence in another suit, though both suits relate to the same subject matter ; and that such cases ought not perhaps ever to be received as evidence against the parties, unless the admission of some fact in them be made the condition of a new trial. Cowen’s Phillips 182; 2 Johns. 157, Elting vs. Seaman.

We regard the ruling in the court below on this point as correct. The facts alleged in the former counts, which are now struck from the declaration, and proof that evidence was offered on a former trial as tending to sustain them, do not constitute an admission of the truth of such counts, so as to prevent recovery on new counts, when the claim is differently stated.

There are various other points raised in the case. On a former hearing it was alleged in the several counts in the declaration, that the consideration of the defendant’s promise was the procuring “ an assignment to the plaintiff of certain deeds;” and the court held that the contract thus declared on required an assignment and delivery of the deed itself. The allegation is now different, and the consideration of the defendant’s promise is alleged to be the procuring “an assignment, release, or discharge of the claim and demand, which certain individuals severally and respectively had against the defendant, by virtue of their writing obligatory against him.” Under the contract thus declared on, an assignment of the claim does not necessarily imply an actual assignment of the deed itself. It is a sufficient assignment, within the terms of the contract, if a full transfer of all claims that can arise under the deed is effected; and it is immaterial whether this is done on the writing obligatory, or by an independent instrument. The exception, therefore, at this trial, that an assignment and production of the deed is essential to sustain the declaration, is overruled.

The demand made of the defendant for payment of these claims, is excepted to for the reason that it included a claim of William Cooper, who, it is found by the verdict, was not one of the Connecticut creditors, and because no liquidation or statement of the amount claimed was presented to the defendant. A sufficient reply to this objection is, that no exception was taken to the demand at the time, and no specification was asked. Where claims are taken up for the benefit of another, and, on demand of payment, a mere general refusal is given, without any cause assigned, or enquiry made, we hold the demand to be good, notwithstanding it included a claim which the party is not bound to pay, and though no precise sum is named as the amount due.

It is contended, also, that the set-off, derived by assignment through Grout from Whitmore, should be allowed against the note of the plaintiff, in diminution of his claim. This claim was undoubtedly good against the plaintiff’s estate, had it been duly presented to the commissioner, and allowed. But this was not the case. Grout, who then held the claim, took no measures to enforce1 it; and it became, under the provisions of our statute in relation to insolvent estates, “ forever barred.”' 1 N. H. Laws 364.

A subsequent assignment to the defendant, to be applied in diminution of his claim, could not revive it. Had it been assigned to the defendant previous to the plaintiff’s decease, it might perhaps have been allowed as a set-off to the plaintiff’s claim. 2 Mass. 498, McDonald vs. Webster; 4 Pick. 212, Boardman vs. Smith; 6 Greenl. 240, Fox vs. Cutts. But it clearly cannot be thus allowed where the assignment is subsequent to the plaintiff’s decease, and after a declaration of insolvency.

It is contended, however, that this claim is no part or parcel of the plaintiff’s estate, but was recovered by the plaintiff for Whitmore’s benefit, and is a trust fund, which the plaintiff’s representatives should be required rightfully to appropriate at any- moment. The objection to this is, that there is nothing in the nature of the claim, or the acts of the parties in reference to it, to distinguish it from any other debt due to the estate. The amount was recovered in the plaintiff’s name, and he was permitted to receive the payment without any thing on the part of Whitmore tending to show that he relied for his claim on the specific property received. The amount became merged in the plaintiff’s estate, and must now be regarded as a mere ordinary indebtedness, and barred, like other claims. If it could be regarded as a trust fund, the only manner in which it could be enforced, consistently with a due regard to the rights of all parties, would be by bill in equity.

The exceptions we have thus far considered are overruled ; but an additional exception has been taken, which we consider as well founded, and which will compel us to set the verdict aside.

It is conceded, that before secondary evidence can be given of the contents of a written instrument, its non-production must be accounted for, and due diligence shown to obtain it. 8 Pick. 329, Boynton vs. Rees; Ditto 272, Poignard vs. Smith. In this case, secondary evidence was introduced as to the contents of the bond to Hall, the Pulsifers, and others. This bond was traced into the hands of Hall, and is supposed to have passed, with his claims and demands, to his assignees. Evidence was offered of search for the bond among the papers of one of the assignees, but the exception was taken at the trial that no evidence was shown of search by the other assignee.

The testimony of a person to whose care a paper has been entrusted, that he made search, and could not find it, is evidence of its loss. 5 Mass. 101, Jones vs. Fales. But in this case the effects of Hall passed to two assignees, and search is made by but one, without any evidence tending to show that there was not an equal probability of finding it in the hands of the other. The same rule of law that would require the search by one assignee, would require search by both. We think, therefore, a sufficient case was not made out to justify the admission of secondary testimony.

Whether the evidenceof loss of an instrument is sufficient to let in secondary evidence of its contents, is a question for the court. 8 Pick. 390, Donelson vs. Taylor; 15 Pick. 368, Page vs. Page. On this point it has been contended that the ruling of the court below is conclusive as to what evidence is essential to show the loss of a paper, and that the whole matter is subject to their discretion; but this is not the proper application of the rule in this respect. This court will not interfere, where the proper description of evidence is introduced as to the degree of evidence necessary to show the loss of an instrument. The proper description of evience it is for us to determine, but the degree of such evidence necessary to satisfy the court of a loss, is for the consideration of the court below, and their decision upon it is conclusive. The rule of law required that search should be made for the bond by all those into whose hands it was traced, before secondary evidence could be admitted. As such evidence of search was not shown in this case, secondary evidence should not have been received. The ruling of the court was, therefore, incorrect in this particular.

Verdict set aside.

Parker, C. J., did not sit