Russell v. Frisbie ( 1848 )

Hinman, J.

The defendant’s liability, in this case, depended was the master upon whether his brother, Major R. Frisbie, of his brig, the Energy, and was sailing her with his consent,, at the time he took on board the plaintiff’s lumber ; or, whether he had run away with the vessel, and was sailing her without any authority from the owner. The defendant claimed, that becoming dissatisfied with the conduct of his brother, he took from him, and from on board the brig, the papers which had constituted him the master, and which alone authorized him to sail the vessel, and revoked his authority as master ; after which, he fraudulently procured other papers, and ran off with the vessel. It was proved, that the defendant, on the 18th of September, 1845, did in fact take said papers from on board the brig, and from the possession of his brother, and it was not claimed that they were ever returned to him. Mr. Hempstead testified, that the defendant deposited the papers with him, to keep until he called for them ; and the question is, whether the court erred, in admitting certain declarations of the defendant, to this witness, made at the time of so depositing the papers with him. This, again, depends upon whether these declarations were so connected with any material act, as to be admissible for the purpose of explaining or qualifying it, or of showing the intent with which it was done. If they were not admissible on this ground, it was clearly an error to receive them, as they were made by the party in interest, and were also hearsay.

The counsel do not differ in regard to the admissibility of declarations, which accompany and characterize an act. They both cite the opinion of Ch. J. Hosmer, in Enos v. Tuttle, 3 Conn. R. 250., as containing the true rule ; and the nature of the subject is such as probably to prevent any more precise or accurate rule than the one there given. To be admissible, they must be made at the time of the act done, and be calculated to unfold its character. The difficulty is in the application of the rule ; and this again, generally arises from the difficulty of determining the precise nature of the act itself. In this case, the plaintiff’s counsel look at the mere act of depositing the paper with Hempstead, as the whole act of Frisbie, which his declarations went to explain. Hence, they consider what was said in regard to his unwillingness to let his brother go to sea in the vessel, as not at all calculated to characterize it. But the depositing of the papers was a small part of what was done at the time. Of itself, it was a matter of no great importance. It was evidence that the defendant had the papers in his possession, at that time ; and, his telling Hempstead to keep them, showed he did not intend they should immediately go into the possession of another. This was perfectly consistent with the fact, that he was only keeping them for some temporary purpose ; for the convenience of his brother, or because their arrangements were not then completed. It did not show how he came by the papers, after they had once been in his brother’s possession; or that he had revoked his authority. Indeed, disconnected from the other evidence, it hardly tended to prove any such revocation. When, however, it is examined in connexion with proved and admitted facts, its aspect is very different.

It was a conceded fact, that, on the 17th day of September, Major R. Frisbie was the master of this vessel, by the defendant’s appointment. These papers, it appears, bore that date ; and the master had them on board the vessel. This testimony of Hempstead was only a part of the evidence going to show that this authority was revoked. The chief part of the evidence consisted in the defendant’s going on board, and taking the papers from the master, into his own possession. All this part of the transaction was proved, by witnesses on both sides; and was not denied. It was, therefore, a mere incident of his taking the papers, that he deposited them with Hempstead to keep. For what purpose he made this deposit, is immaterial. It appears he was himself on the eve of sailing, in another vessel ; and, probably, he thought it better to leave them with Hempstead than to take them with him to New-York.

As then, from the whole case it appears, that this deposit of the papers followed immediately the act of taking them, and was a mere incident of that act, so that the whole was hit one transaction ; the declaration made while depositing the papers, characterized the act of taking them, as well as the act of depositing them, and thus showed that he did it for the purpose of revoking his brother’s authority as master. Indeed, the declaration that he was unwilling to let his brother go to sea in the vessel, made while engaged in this transaction, was as strong evidence of the revocation of authority previously conferred, as can well be imagined. Had Hemp-stead been on board the vessel, and there received the papers at the time they were first taken, the defendant making the declaration that he was unwilling his brother should go to sea in the vessel, and telling Hempstead to keep the papers until he called for them ; it would seem there could be no doubt of the propriety of proving declarations so made. But can it make any difference, because he stepped from the vessel’s deck to Mr. Hempstead's, before he made the declaration ? If, then, we are right in considering the deposit of the papers as a continuation of the act of taking them, there seems to be no doubt that the accompanying declarations were, properly received.

Whether what was said in regard to the master’s wife, was admissible, it is not necessary to determine. The defendant gave that as his reason for taking the papers, and refusing to let his brother go to sea in the vessel. If the court had been asked to separate that from the declaration, that under the circumstances he was unwilling to let his brig go to sea with his brother in her, it would have raised the question whether his reason for this was admissible, or of any importance. Obviously, it was not, unless it was so connected with the other part of the declaration, as to be necessary to a full understanding of his meaning. Perhaps there is ground for saying, that these words were necessary to a full understanding of what was said in immediate connexion with them ; but it is enough that they were only objected to, in connexion with, and as a part of, declarations, which, we are satisfied, were admissible.

This being the only point made by the plaintiffs, it follows, there should be no new trial.

In this opinion the other Judges concurred, except Ells-worth, J., who was absent.

New trial not to be granted.