Nusbaum v. Thompson's Executors , 11 Md. 557 ( 1857 )

Ecclestox, J.,

delivered the opinion of this court.

This suit was instituted by John P. Thompson against Adam Nusbaum, (the appellant,,) upon a promissory note dated the 1st day of May 1848, for $2000, payable the 1st day of April 1850, given by Nusbaum to John Myers, and endorsed or transferred by him to Thompson. Subsequent to the institution of the suit, Thompson’s death was suggested, And his executors James G. Hamner and MaryL. Thompson, were made parties,

It appears from the evidence, that besides the note in dis» pute, a promissory note dated the same day, for $2000, payable on the 1st of May 1850, was given by Nusbaum to John Myers, and endorsed or transferred by him to Thompson,

The chief matter in controversy, at the trial, was, whether the defendant could rightfully claim as a credit upon the note in suit, a receipt for $10(51, purporting to bear date the 25th of April 1849.

According to the testimony of E. H. Rockwell, the defendant called on him, about the 1st of April 1850, to make a calculation, from data then furnished by the defendant, for the purpose of ascertaining the balance due by him to Thompson upon the note then due. The witness thinks the defendant produced to him receipts of $1061, $300 and $500. The one for $1061, he thinks was dated the 5th of April 1849, and not according to its present date, the 25th of April. His opinion is, that the figure 2 before the figure 5 in the receipt, was evidently put in after the 5 was made. He calculated the payment of $1061, as of the 5th of April 1849. He thinks the defendant told him to make a calculation to the 6th of April 1850. The balance due on the calculation so made by the witness was over $400. In December 1850, he made a calculation for Thompson, on the same note from data furnished by him, and the balance amounted to $421.66. The witness supposes, that the data furnished him by the defendant, were identical with those furnished afterwards by plaintiff’s testator, Thompson. This the witness supposes, from the fact that the result of the calcula)Íon made by him for the plaintiff’s testator, in December 1850, corresponded with the amount ($421.66,) “which the plaintiff’s testator had endorsed as received on said note, due in May 1849, on the 6th of April 1850.” The witness recollects distinctly, that the receipt for $300, was produced by defendant; but does not distinctly recollect any others. “Does not recollect from seeing data furnished by plaintiffs’ testator to witness, in December 1850, what receipts or data were furnished to him by defendant, in April 1850. Only judges from concurrence of amount ascertained by witness on calculation for plaintiffs’ testator, in December 1850, with that endorsed on said note by plaintiffs’ testator, on the 6th April 1850, that the data furnished to witness by defendant, in April 1850, and by plaintiffs’ testator, in December 1850, were the same.”

Some time after the calculation was made for the defendant, he called on the witness and asked him to look for it. The witness having looked and not being able to find it, the defendant told him “it was not material, he did not care whether he could find it or not.”

This witness says, “the paper on which 1 made calculation as before stated for defendant, is lost. That when said calculation was made for defendant, defendant did not say anything about a receipt from plaintiffs’ testator to defendant, being or having been lost, or being mislaid.”

The defendant, in support of the issue on his part, offered to prove by Dr. Abdiel Unkefer, “that long before the 1st of April 1850, the defendant had complained, that he had lost or mislaid the said receipt of $1061, and that the plaintiffs’ testator had, on being informed by defendant of the loss by him of said receipt, denied that he had given any such receipt, and that defendant had complained that he would be compelled to pay over again said amount of money, in consequence of said loss, and that afterwards, in the latter part of the summer of 1850, the defendant testified great joy, that he had recovered said receipt, which had been mislaid and as he supposed lost.” To the admissibility of this offered evidence the plaintiffs objeoted, and the court sustained the objection; to which decision the defendant excepted.

Thus it will be seen, that the sole question presented by the bill of exceptions is, whether the court erroneously refused to admit the offered evidence, consisting, exclusively of the defend ant,’s declarations.

In Whiteford vs. Burckmyer Adams, 1 Gill, 140, the court say: “It is an unbending rule of evidence, subject to very few and well defined exceptions, that a party cannot offer in evidence his own declarations in relation to the subject in controversy.” And, in our opinion, none of the “well defined exceptions” alluded to, will sanction the admission of the declarations which have been offered. They were not made in the presence of the plaintiffs, or of their testator, nor were they made at the time of any act being done, in- relation to the matters in controversy, and explanatory thereof, so that the declarations might be considered as coming within the rule in regard to res gestai,

' Whether the verdict is in accordance with the proof, is not a subject presented by the record for our consideration; and we have only stated so much of the evidence, as will show the nature of the question raised by the exception. The whole testimony given was submitted to the jury, and they have rendered their verdict upon it. The defendant made a motion for a new trial, and the court, overruled the motion.

Judgment affirmed.