President of Mechanics Bank v. Woodward , 73 Conn. 470 ( 1901 )

The trial court erred in permitting the defendant to make evidence for himself, by showing his communication with his own attorneys as to a collateral matter in the course of another suit relating to a different transaction. Nor was his testimony admissible, that the two notes found among his wife's papers, which were the subject of that communication, were forgeries.

The plaintiff had endeavored to prove its case against the defendant by circumstantial evidence. It relied on his course of conduct with reference to certain pecuniary transactions with which his wife was connected, and in which she claimed to represent him. As to these transactions he was entitled to show, if he could, that his conduct had been such as to exclude the presumption of agency which it was sought to raise. The trial court therefore properly allowed him to prove that although, when demand was first made upon him he did not deny his signature on the Hoadley note, he did, as soon as it was put in suit, tell the attorney who brought the action, that it was a forgery. That was an open declaration to one representing an adverse interest, made under circumstances which called for a statement of his defense. But the two notes which he afterwards found among his wife's papers had not been the subject of evidence on the part of the plaintiff. His delivery of them to his own attorneys was a confidential communication to enable them to defend his interests more effectually, and a mere self-serving act. Builders SupplyCo. v. Cox, 68 Conn. 380, 382. It could not be introduced as the basis of admitting testimony that these notes were forgeries, on which again to build the inference that the note in suit probably was, and that he had no share in its fabrication.

Evidence that the defendant published a notice in a New Haven newspaper, in October, 1898, cautioning all persons against buying any notes purporting to be signed by him in favor of his wife, and stating that they were worthless, was properly admitted. It tended to show that he had neither authorized nor ratified the issue of any such paper.

The defendant having testified, on cross-examination, that he had visited a certain party in New York, said by his wife to be her subagent for his stock investments, he was properly allowed to state, on his redirect examination, that this party, at that visit, denied the existence of any such connection with her. All this bore directly on the defendant's knowledge of the source from which the moneys came which he received from his wife and she from the plaintiff.

Having been properly allowed to testify on his own behalf that she told him that they came from his New York stock investments, and having been fully cross-examined upon this, he was asked, on recross-examination, whether he knew now where she claimed to have got it. If it appeared that he then knew that she claimed to have got it from the plaintiff, this fact might have been admissible as tending to show either ratification or the wrongful retention of another's money; but it was within the discretion of the court to exclude the question as put too late.

The finding that the moneys paid by Mrs. Woodward to settle the Hoadley suit "were probably part of the proceeds" of the forgeries of September 28th, 1898, but that "this is not on the evidence absolutely clear," is uncertain and defective.

A finding, in stating without qualification that a fact is probable, may import that it does exist, and its existence may thus be substantially found, although improperly stated.Hoyt v. Danbury, 69 Conn. 341, 348. It was of no consequence that the fact was not absolutely clear; but such a qualification in the finding, unless held to be meaningless, tinctures with doubt this fact which apparently was the only reasonable conclusion from the other facts found.

The finding seems to present a question whether the claim of the plaintiff is founded on a contract of loan, or on a mere obligation to account for moneys had and received from a particular agent, under the mistaken belief that they were the fruit of the particular agency. As it is possible that an amendment of the complaint may be allowed, to obviate any claim of variance, we express no opinion on this point.

There were several rulings on matters of evidence which we do not state because they were so obviously correct that no discussion of them is required.

No sufficient ground is shown for correcting the finding, on any of the exceptions taken.

There is error and a new trial is ordered.

In this opinion the other judges concurred.