Carruth v. Bayley , 96 Mass. 532 ( 1867 )

Foster, J.

1. The admission of the partnership agreement as testimony for the plaintiff, after the execution thereof had been proved by cross-examination of the attesting witness, called for other purposes by the defendant, was purely within the discretion of the presiding judge, and not a matter of exception.

2. The account of stock admitted bore the same date with the bill of sale in which it was referred to. The clerk who made it testified that he never took any other account of stock than this one; and that this was taken by Hamblen’s direction. There was evidence tending to show that the stock was appraised by Hamblen and his clerk; so that Hamblen was by direct evidence connected with this appraisement or account of stock, and it was identified as the one referred to in the bill of sale, if not conclusively, at all events sufficiently to be submitted to the jury.

3. The letter from Schanck to Carrach & Hamblen was conceded at the argument to have been written after the interview between him and Carruth in New York. It was admitted to discredit Schanck’s account of the conversation between them then, according to his version of which Carruth made inquiries as to the amount due from Hamblen to Schanck Sc Romain, and asked them to extend the payment of this debt six months, taking for it the notes of Carruth Sc Hamblen. This conversation was introduced at the trial to show that Carruth knew of Hamblen’s indebtedness and liability to pay at maturity, and had reasonable cause to believe that Hamblen was insolvent. The letter, written a very few days after the date of the conversation, contains no reference to the debt due to the writer’s firm, or to any proposed extension of payment upon Hamblen’s liabilities. On the contrary, it indicates an expectation that Carruth Sc Hamblen were to continue in business on a considerable scale. It likewise showed that the writer was after the conversation continuing to deal with and sell goods to Carruth Sc Hamblen. And it was a fair topic of argument that the tenor of the letter was inconsistent with any belief on the part of the writer that the parties to whom it was addressed were in circumstances of pecuniary embarrassment. It thus bore upon the question whether Schanck’s narrative of the conversation was correct and accurate; and whether what passed between him and Carruth on that occasion required the construction put upon it by the witness and the party on behalf of whom he testified. When a conversation is introduced in evidence from which a particular inference is sought to be drawn, that inference may be rebutted by showing that the witness to whom it was addressed did not at the time put upon it the interpretation which he or the party calling him claims as its true construction, and that he did not then deduce from it the conclusion which at the trial it is used to establish. The bearing of the letter in this direction may nave been very slight, but it was legitimate for the consideration of the jury in reply to the testimony of Schanck.

4. The second letter objected to was admissible to discredit the testimony of Hamblen. It was an answer made by Mr. Clark at Hamblen’s request to a letter from Schanck & Romain to him. He read the letter and took it away with him. Hamblen had testified that he owed Schanck & Romain §6000, The letter tended to show that he then denied so large an indebtedness, and complained of their conduct in presenting such a claim as an act of injustice which he and his friends were prepared to resist. It is to be taken in connection with and as confirmatory of Clark’s narrative of the conversation he held with Hamblen at the time it was written. Indeed, the letter may under the circumstances be regarded as a part of that conversation. If the threats and injustice referred to in it did not relate to the claim of $6000, the meaning of the letter was open to explanation by Hamblen himself, or any other competent testimony. In the absence of any such explanation, the letter and conversation tended to show that Hamblen then indignantly denied the very debt to the existence of which he had testified before the jury. Exceptions overruled.