Andrews & Bro's v. Jones , 10 Ala. 460 ( 1846 )

COLLIER, C. J.

The belief of the witness, A. S. Jones, that the claimant or her daughter had no other property than •they acquired from the estate of S. Jones, deceased, was rightly excluded. It has been repeatedly ruled by this court •that the mere belief or opinion of a witness is not evidence, but he must state the facts and circumstances upon which he rests his opinion, or from which he draws his conclusion, that the jury may understanding^ decide for themselves. [4 Ala. Rep. 48; 5 Id. 531.] Conceding that the witness was the executor of the estate of his father, and his belief of what the claimant and Mrs. 'Walker received from that source, might perhaps be regarded as his knowledge or recollection upon the subject; yet as it respects their acquisitions from other, or aH'sources, it would be obnoxious-to the objection we have stated. As to these, his means of acquiring certain information is not shown, and cannot be intended. In this view of the point, it is not necessary to inquire, whether the evidence was not irrelevant, or whether the plaintiffs could have beeii prejudiced by its rejection, if the decision was incorrect;

It is admitted, that where there is a written agreement, the law intends that it contains the understanding and meaning of the parties, and as a general rule, it is not permissible to-show that it does not contain their entire agreement, or that it contains too much. [1 Ala. Rep. 160; Greenl. on Ev. 318.] But this rule has never been extended, so far as to exclude verbal evidence to raise a resulting trust'; and it cannot be endured, that an agent, who uses his principal’s money in the purchase of property, can exclude the latter from its enjoyment, by taking a conveyance to himself eo nomine; or if he sells, and receives notes payable to himself, that the principal cannot enjoin their collection. In Jackson v. Mills, 13 Johns. Rep. 463, it was held, that parol evidence was admissible to show, that one man advanced the consideration for the purchase of land, though the deed was taken in the name of another, so as to raise a resulting trust in favor of the former. [See Gardiner Bank v. Wheaton, 8 Greenl. Rep.. 373.]

Mr. Greenleaf, in his Treatise upon the Law of Evidence,, 318, remarks, that the rule which excludes parol evidence to contradict or vary the terms of a valid written instrument, is-applied only in suits between the parties thereto; as they alone are to blame if the writing contains what was not intended,- or omits that which it should have contained. It cannot affect third persons, who, if it were otherwise, might be pre-u diced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties; arid who therefore ought not to be precluded from proving the truth, however contradictory to the written statements of others. • [See also pp. 26, 203, 236.] The recitals or statements in written agreements, are, as respects third persons, res inter alios, and for that reason cannot conclude parties and privies. [See 3 Starkie’s Ev. 1051 to 1054, 3 T. Rep. 474; 18 Johns. Rep. 369; 15 Pick. Rep. 47; 4 S. So Port, Rep. 106; 3 Phil. Ev. C. & H’s Notes, 1436 to 1448.] Whether moral or legal justice be referred to for the rule of decision, we think it equally clear, that it was competent for the claimant in the case at bar, to show that conveyances made to, and by her agent, were received and made by him upon her account, and though the notes were payable to him individually, that she was entitled to the money to be paid thereon.

The notice states, that the commission under which Chandler’s deposition was taken, required that himself and another witness should be examined at a time and place designated, and if the commission should not be completely executed on the day named, then the commissioners were to continue from day to day until its execution was completed. The other witness, the acting commissioner certifies, was examined on the appointed day, and Chandler could not be then examined, because of his engagements elsewhere. We think the certificate of the commissioner being undisputed, must be taken as true ; and having attended and performed the duty devolved on him in part, it was competent for him, as the examination could not be completed, to adjourn it to the succeeding day. If the first day had been entirely occupied in examing the first witness, there would be no ground for the objection we are considering, and we think the power conferred by the commission, not only authorized an adjournment in that case, but also, where, from any cause, the commissioner could not examine the witness. This conclusion seems to us so reasonable in itself, arid so entirely in harmony with previous decisions, that we will add nothing more upon the point. [9 Porter’s Rep. 157; 3 Ala. Rep. 60.]

The court not only directed . the jury to disregard every thing that this witness stated upon hearsay, or information received from others, but to prevent misapprehension on the part of the jury, caused it to be so noted on the deposition, and a pencil mark to be drawn across the part rejected. Thus far, at least, there is nothing to which the plaintiffs’ counsel objects; but he insists the court should have gone farther, and excluded every thing the witness said in respect to the extent of the claimant’s property, even where he spoke from his own knowledge. The plaintiffs had endeavored to show that the claimant was a lady of means too limited to have purchased so much property as she now claims to be the proprietor of. This evidence being admitted, it was clearly competent to prove the reverse, and we can conceive of no mode of proving it more unexceptionable, than by the positive assertion of a witness, who declares what he professes to know. Such was the character of the testimony in question, as it was permitted to go to the jury.

In respect to the proof of J. V. F. Walker’s agency, so far as it concerns the present controversy, it is immaterial whether it was created in writing, or by a verbal appointment, the legal rights of the parties are the same. In answer to a question proposed by the plaintiffs, he stated among other things, that he had a recollection of one letter, in which he received a remittance by a check, or draft, written on a sheet of paper, and directions or instructions as to the use of it below. This answer amounted to nothing more than saying, the witness remembered one letter received from his principal, in which she recognized his agency, with this difference, he stated the form in which it was done. We cannot regard this as a verbal disclosure of the contents of the letter — the amount, date, character of the draft, &c., or the substance of the accompanying instructions are not stated. But we need not consider this point, for it is perfectly clear, upon the authority of this and other courts, that the testimony as to the loss of the letter was sufficient to let in secondary evidence of its contents.

The question of marital rights, the effect of the ante-nuptial agreement, and the rights of the creditors of the husband to subject the property of his wife, which he has not reduced into possession, to the payment of their debts, was considered at length in Andrews & Brothers v. Jones, et al. at this term, (p. 400.) In that case we decided that the creditors had no greater right to the property of the wife not reduced to possession than the husband had; that the latter had no title to it, and conse quently it was not chargeable with his debts. That whether the ante-nuptial agreement was binding upon J. Y. F. W. and wife, if they were unwilling to abide by it, was an immaterial inquiry; for until they dissented from it, and the husband acquired dominion over it, it could not be seized and sold under an execution in favor of his creditors; that it was a disclaimer on the part of the husband of title and possession of whatever the claimant had in her hands, as the guardian of her daughter, and until dissented from by the husband, and set aside, must be regarded as operative.

There was no proof in the case before us, to show that J. Y. F. W. was in possession quasi husband of any portion of his wife’s estate. True, he had the six slaves, but he held these as the agent of the claimant, her guardian.

From the view we took of the law in the case cited, it is clear, that the circuit court did not err in refusing to charge the jury as prayed by the plaintiffs’ counsel. As applied to the evidence in this case, the prayer for instructions asserted legal propositions which could not avail the plaintiffs.

The bill of exceptions affirms that no point was reserved upon the charges given. But conceding that they are severally excepted to, we do not discover any error that will avail the plaintiffs, whether abstractly considered, they lay down the law'correctly or not. The fairness of the purchase of the slaves in question, by the defendant in execution, whether upon his own account or the claimants, with his funds or her’s, in whole or in part; whether his agency was not simulated, and the claimant had not lent her aid to cover his wife’s estate for the benefit of himself and family, and thus defeat his creditors, were questions distinctly referred to the jury, with instructions, if they should find affirmatively, to return a verdict for the plaintiffs. Upon the whole, we can discover no available objection to the ruling of the circuit court, and its judgment is therefore affirmed.