McCarthy v. Peach

70 N.E. 1029, 186 Mass. 67, 1904 Mass. LEXIS 893

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1904
• Status: Published

Opinion

Morton, J.

This is an action to recover a balance alleged to be due to the plaintiff from the defendant for services rendered in securing a customer for an express business in Salem. There was a verdict for the plaintiff, and the case is here on the defendant’s exceptions.

The only question is whether a witness for the plaintiff propei’ly was allowed to testify to what he heard the plaintiff say as a part of an alleged conversation with the defendant over the telephone, — the plaintiff being in Boston and the defendant in Chelsea, and the witness being in the presence and hearing of the plaintiff. The witness had no personal knowledge with whom the plaintiff was talking, and did not hear anything that was alleged to have been said by the defendant, and did not know that the defendant heard anything that the plaintiff said. At the argument of the case it was admitted by counsel for the defendant that the plaintiff testified that the conversation was with the defendant. We think that the evidence was rightly admitted. The analogies furnished by conversations between parties through an interpreter, and conversations in a loud tone by one party and a whisper by the other are not altogether complete. In such cases a third party who testifies to more or less of the convex’sation, as the case may be, is ixx the presence of the pex’sons whose conversation he uixdertakes to repeat, and therefore has pei’sonal knowledge in respect to the parties to the conversation, though he may ixot hear or understand all that is said by the principals. In the present case the witness had no personal knowledge as to the identity of the other party to the alleged conversation, or that there -was any other party, or, if there was, that he heard what the plaintiff said. It is not eontexxded that the mere fact that the conversation was over a telephone rexidered what the witness testified to incompetent. Lord Electric Co. v. Morrill, 178 Mass. 304. The evidence that was admitted cannot be regarded as hearsay evidence or declarations made by the plaintiff in his own intex’est, simply because the witness did not know of his own knowledge that the other party to the alleged conversation was the defendant, or that there was any other party, or that the defendaixt heard what was said. If the alleged conversation took place, as the plaintiff testified that it did, then what the plaintiff said was admissible as a part of it. Whether it did take place as alleged or was fictitious was a question of fact for the jury. It could not be ruled as matter of law that there was no evidence of a conversation between the plaintiff and the defendant of which what was testified to by the witness constituted a part. See Miles v. Andrews, 153 Ill. 262, 267; Sullivan v. Kuykendall, 82 Ky. 483; Oskamp v. Gadsden, 35 Neb. 7; Wolfe v. Missouri Pacific Railway, 97 Mo. 473.

E. O. Jenney, for the defendant. S. R. Cutler, for the plaintiff, was stopped by the court.

Exceptions overruled.