Oviatt v. Wojcicky , 95 Conn. 562 ( 1920 )

It seems to have been informally disclosed upon the trial that the note in question was not duly stamped upon its execution and delivery, as required by the United States revenue laws. 1 U.S. Comp. Stats., 1919 Supplement, § 6318hh, p. 1278. The defendant thereupon asked the court to charge the jury, in effect, that its acceptance by the plaintiff in that condition not only subjected him to the penalty provided by the Federal law for its violation, but left the note worthless as the basis for any action by the plaintiff upon the debt which it evidences. No such issue was in the case — raised either by the pleadings or otherwise, and the defendant was in no position to take advantage of any claimed dereliction of the plaintiff as suggested. We have, moreover, in an earlier case involving a similar question under the Federal Revenue Act of 1898, pointed out the somewhat limited effect of a mere failure to affix a stamp at the right time and place. Garland v. Gaines, 73 Conn. 662,665, 49 A. 19.

The plaintiff offered an officer of the Milford Trust Company, presumably acquainted with the essential fact, to say when, if ever, the note in suit was put into that bank for discount or otherwise. This was objected to as immaterial. The court overruled the objection and an exception was taken to the ruling. The question was properly admitted. The defendant's whole defense was that the plaintiff was pressed for money for immediate use, and that the whole amount of the note was a loan, presumably to be realized forthwith by a discount at the bank. It was clearly a fact entitled to recognition in considering that claim and its character for truth, that the note as a matter of fact was never banked at all until for collection at its maturity, two months after the claimed urgency of the plaintiff to raise the money for instant use.

The plaintiff on cross-examination was questioned as to the note for $600 which preceded the one in suit, and was surrendered when the latter with its accumulations was executed and delivered. He was asked why he never brought suit on the earlier note, and the question was excluded. The plaintiff had gone fully into his own version of the circumstances, and his story, of how the final note for $855 had been accepted as including the long overdue $600 note with its accumulations of interest, and the further charges of merchandise sold on credit, is in itself an extended answer to the single question objected to. He waived no right by the course he followed, and it was one in which he was answerable to no one for his choice. We find no harmful error in this ruling.

The defendant upon the trial offered a photographer who identified a photograph handed to him as a correct but enlarged photographic representation of the note for $600 referred to, which was already in evidence and before the jury. The record leaves much to be desired as to the precise circumstances attending the offer of this picture. It was clearly not admissible per se merely as an enlarged reproduction, however faithful and accurate, of another paper already in evidence before the jury. It must, to open the door to its admission, possess some added evidential value or virtue peculiar to itself. This necessarily presents a preliminary question for the trial judge, quite distinct from that involved in the verification of a photograph as an accurate reproduction of a scene or object not otherwise before the jury. Perhaps the most common instance of the claimed pertinence of an enlarged photograph is in cases of compared handwritings when a magnified deformity or characteristic of any kind is brought into marked prominence without destroying or modifying the fair proportions of the whole picture. It was, therefore, the preliminary duty of the trial court to inspect this photograph, and to say whether upon the avowed purposes of the offer, as to which the record gives little information, it was of evidential value for the jury. We must assume that the court properly excluded it in the fair exercise of this function. There is nothing to indicate otherwise.

There is no error.

In this opinion the other judges concurred.