Maxwell v. Warner

11 N.H. 568

Opinion

Gilchrist, J.

*

It is not necessary, in this case, in order to entitle the plaintiff to recover, that he should be able to prove the precise words used by the defendant in the conversation to which the witness has testified. The question is not as to the meaning of particular words and phrases, so that they must be particularly stated, in order that their meaning may be understood, but whether the defendant did or did not promise to pay the plaintiff' the debt which Richardson then owed him. Nothing is more natural, or consistent with experience, than that a person should remember precisely what this witness remembered, and should forget just rvhat this witness failed to recollect. He might understand the object for which the parties met, the subject of their conversation, the purpose which the plaintiff desired to accomplish, and the final result of their discussion : because these are the most material matters, and would alone be likely to dwell upon the recollection of a person who was not present for the express purpose of noting not only the agreement of the parties, but the language they used to express it. The ideas conveyed by the language would, probably enough, remain in the memory, while the terms used might he forgotten. It would be irrational to hold, that when the language used is immaterial, and unnecessary to be proved, a witness who remembers the substantial and necessary part, should be rejected because he has forgotten that part which there was no necessity that he should remember in order to prove a valid contract upon which a party might he charged. This would, in effect, be to hold that because he cannot remember the language used, he must necessarily have forgotten the ideas conveyed ; a proposition so contrary to experience, that, to be refuted, it needs only to be stated.

We think, then, that there is no reason for excluding this witness, arising from the intrinsic improbability of his statement so that it could not be a safe basis for the action of a jury. Nor is there any greater danger of perjury, than if he repeated the language of the parties. He could swear falsely to the language used, as well as to his belief. He is as clearly punishable for perjury in falsely swearing to his belief, or understanding, of a fact, as if he had sworn to the existence of the fact itself. Miller's Case, 3 Wils. 427; Pedley's Case, 1 Leach 365.

In the case of Eaton vs. Rice, 8 N. H. Rep. 378, the question was, where was the dividing line between certain lots of land ? A witness, who was present at a conversation between the parties, testified that he understood, from their conversation, that they then agreed where the true line was. This evidence was excepted to by the tenant. It was said by Richardson, C. J. : “ If a witness should undertake to state in detail all that was said by two persons in making a contract, in the precise order in which it was said, and exactly as it was said, it would amount to nothing more than stating what he understood them to say.

“ If, in all cases, a witness be required to state what was said, so accurately that the jury may be enabled to judge, by the terms used, what the contract was, it must frequently happen that a contract not in writing cannot be proved at all.

“ But the recollection of a witness, as to what an agreement between parties was, according to his understanding of what was said by them, at the time, may be very satisfactory evidence, although he may not be able to recollect distinctly one word that was said. Indeed, in many cases it is the best, the only evidence which a party can be supposed to have it in his power to produce. The credit that may be due to a witness in these cases, may depend much upon his being able to detail enough of the conversation to show that his understanding of the matter was probably right. But what he understood is, in all cases, evidence to be weighed by a jury.”

In the case of Jackson vs. McVey, 18 Johns. 330, a witness was permitted to testify that certain premises were included in a conveyance, although he could not recollect any of the courses stated in the description of the premises. It is said by the court: “We consider the conclusion unsound, that because a witness cannot recollect the courses of a description in a deed, therefore he cannot prove the contents of it. A man may know that his farm is included in a deed taken from the vender, without being able, from, memory, to state the particular courses/’ The principle of these decisions seems to authorize the admission of the evidence in the case before us, and we think it was properly admitted.

Judgment on the verdict.

Woods, J., having been of counsel, did not sit.