Williams v. Fitzpatrick , 20 Ala. 791 ( 1852 )

PHELAN, J-

— The defendant Williams introduced as a witness, in his behalf, Tunstall the county treasurer. After proving by him certain other receipts, which had been given by him to Williams, for the taxes of 1845, they came to a receipt which purported on its face to be a receipt from Tunstall for the sum off 1189 TW for the county taxes of 1845, dated 25th May, 1846. When testifying in respect to this receipt, Tun-stall said, .that, although he would not deny his signature, or that he had executed the same, yet ‘-‘that he had no recollection of ever giving such a receipt, and stated, that he never received that amount of money from said defendant at any one time; and if the receipt was his, it must have been given by him in lieu of many smaller receipts, which smaller receipts he never got from the defendant.”

In order to strengthen the character of this eleven hundred dollar receipt, which had been thus assailed by his own witness, whom for that reason he could not directly impeach, Williams offered a number of other receipts given to him by Tunstall, as treasurer, for the county taxes of 1846. In offering them, he stated, that he expected to show by them and those previously exhibited, that the whole taken together would amount to the county tax for the jjtwo years, 1845 and 1846. These receipts for the taxes of 1846, the court would not allow to go to the jury, upon the ground that they were not relevant to the issue.

The counsel for the defendant in error has argued, that they should have been rejected, because it does not appear that they were properly proved, or that Tunstall gave them at such a time as would make them evidence. They were rejected on the ground of irrelevancy, and we must confine our examination of them to that ground.

We think it quite clear that these receipts, which were rejected, should have been permitted to go to the jury.

Williams was- sued on his bond for the county taxes of 1845, and in a separate suit for the county taxes of 1846. The proof is, that Tunstall was county treasurer for the years 1845,1846 and 1847. He himself had already testified, that he had never had a full settlement with Williams, but had received payments from him and given receipts from time to time. If this eleven hundred dollar receipt was to be treated as good and valid, it, with the other receipts, would show that Williams had overpaid the taxes of 1845. But the counsel for Williams said, it you will allow all our receipts to go before the jury, they will show that the taxes for both years have been paid, and no more.

I am of opinion that these receipts were competent evidence, even in this view of the case, for in the subsequent suit, if Williams wished to avail himself of the benefit that any excess, in his payments or receipts for 1845, might give him, to make up a deficiency that might exist in the receipts of 1846, it would be important for him to show that he made a fair expose 'of the whole matter in the first suit. Otherwise, when he introduced the large receipt or some other in the second suit, alleging some mistake, the opposite party would say, this voucher was used in the other suit, but we never heard of this mistake before. If there were two suits for county taxes, and the tax collector had receipts from the cpunty treasurer, that would cover both years in amount, but not in the terms of the receipts, this without more would rpa-ke all the receipts relevant in both suits.

But the right to introduce the receipts of 1846, may be put upon a ground distinct from this. Tunstall, who was Williams’ own witness, bad, by bis testimony, thrown a cloud of suspicion over tbe eleven hundred dollar receipt. It was the right of "Williams to remove this, and his duty to do so, by all proper means. He could not impeach him, for he was his own witness. Indeed he might not feel willing to do so, even if he had the ability. The next thing was, to show that Tunstall was mistaken. He was not prepared to deny that he executed this receipt, but had no recollection of it; was sure Williams had never paid him so much at one time, and that this large receipt, if his at all, must have been given for smaller receipts which Williams had never surrendered. Here the man who is relied upon to support an important voucher, the very man who made it, surprises the party who introduces him, by raising very serious suspicions against it. He also says, that it must have been given for other receipts which are still in Williams’ hands. He had before said, that he never had a full settlement with Williams, but had given receipts from time to time as money had been paid. While things are in this posture, Williams, to relieve the large receipt from the cloud thus cast upon it, says to the court, “ I am sued as tax collector in two cases; Mr. Tunstall was county treasurer during all the time; now I propose to exhibit my receipts for 1846, to show that those, when added to these which I have already exhibited, including this one over which suspicion is cast, will just amount to the aggregate amount of taxes which I was bound to pay over in the two years.” This court concur in the opinion, that such proof would have been calculated to strengthen the large receipt, against the suspicion cast upon it by the testimony of Tunstall, and by the fact that, including the amount of this receipt, the taxes for 1845 seemed to be overpaid; and that it should have been received. It was a feature in the case proper to go to the jury, and to be considered by them in making up their verdict. It is possible, that when other receipts came to be introduced, Tunstall might discover some that should have been surrendered, or if he did not, his own testimony would not tell with such powerful effect against the fairness of the large receipt.

It has been argued, that as Tunstall, who gave the receipt, was present as a witness, and ready to be examined on all points touching them, that it was not competent to introduce the receipts as evidence in themselves at all. Tunstall was a competent witness for either party, it is true, but the holder of the receipts was under no obligation to call him. They were good testimony of themselves. They come within the well settled principle, that the admissions of an agent, made within the scope of his authority, and at the time of transacting the business of his agency, are the admissions of his principal. They are then part of the res gestos, and can be proved as such. In this case the receipt of the county treasurer, is the receipt of the county, and there is no need to do more than to prove that the signature is genuine, and that the maker was county treasurer when it purports to have been made.

For authority on these points, see 1 Greenleaf, 125 et seq. Williams v. Shackleford, 16 Ala. 318; Bohannon v. Chapman, 13 Ala. 641.

For the error in rejecting the proof offered by the plaintiffs in error, the judgment of the court below is reversed, and the cause remanded.