Sechrist v. Atkinson ( 1908 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

We are of the opinion that it was error to admit in evidence the memorandum claimed to have been made by the plaintiff at the time of his first interview with the defendant. A memorandum of the kind may be referred to by a witness to refresh his memory where he has no distinct, independent recollection of the facts recorded, or the date of the occurrence. Whether, under the conditions stated, the memorandum so made by one party may be introduced in evidence on his behalf, presents a question concerning which there is a decided conflict of am thority. This question is an open one in the Supreme Court of the United States. Bates v. Preble, 151 U. S. 149, 157, 38 L. ed. 106, 110, 14 Sup. Ct. Rep. 277. The facts disclosed by the record do not require its determination in the present case. It appears from the bill of exceptions that the plaintiff had a distinct recollection of the facts, and that he neither used, nor needed, the memorandum to refresh his memory. Its introduction could, therefore, serve no other purpose than to corroborate his evidence. Under these conditions, it was clearly inadmissible. Gurley v. MacLennan, 17 App. D. C. 170, 380; Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 102, 30 L. ed. 299, 300, 7 Sup. Ct. Rep. 118.

The first paragraph of the charge that was excepted to correctly stated the principle of law applicable to the case as presented by the testimony on behalf of the plaintiff. Bryan v. Abert, 3 App. D. C. 180, 187. Notwithstanding an owner may, after authorizing a sale by an agent, contract with a purchaser procured by herself alone, without coming under an obligation to her agent for a commission, she cannot be relieved of the obligation by effecting a sale to a purchaser found and stimulated to the purchase by the efforts of the agent, even though she may have had no actual knowledge that the agent was the procuring cause, provided that the agent had not, in the meantime, abandoned the undertaking. Bryan v. Abert, 3 App. D. C. 180, 186, 188.

There was a slight error in the second part of the charge in stating that, “according to defendant’s contention, the plaintiff would not be entitled to a verdict unless he had found a purchaser willing to pay $8,000 net for said property.” The testimony that this net price was fixed by defendant at a later interview with the plaintiff was given by him, and not by the defendant. Considering all of the evidence in the case, it is probable, however, that this inadvertent statement had no effect upon the jury.

For the error pointed out, the judgment will be reversed with costs, and the cause remanded for another trial.

Reversed.