Bradbury v. Bridges , 38 Me. 346 ( 1854 )

Howard, J.

— The plaintiff’s right to recover on the draft for $149,04, payable at the Frontier Bank, is not controverted ; but the defence has reference to the other draft in suit, and rests upon the alleged want of notice to the defendant, as drawer, of its non-payment.

An affidavit of an attorney at law, residing in Calais at the time, but who died before the trial, was offered as evidence of notice. It purported to contain' a copy of the notice, which was sufficient in substance, and to have been seasonably deposited in the post-office at Calais, with a copy of the draft attached, and with suitable directions to be transmitted by mail to the defendant.

There is no evidence that the affidavit was made in the discharge of any official duty; and it can be regarded only in the light of a private memorandum of a third person, in reference to a particular transaction. In order to render it admissible in evidence against others, it must relate to some act of the person making it, performed in the discharge of some duty incumbent upon him, and in the ordinary course of his business. Nicholls v. Webb, 8 Wheat. 337; 1 Greenl. Ev. § § 115, 116.

This case does not present any evidence that the draft was left with the attorney, professionally; or that it was his duty to give notice of non-payment; or that the acts assumed to have been done by him, were in the ordinary course of his business or practice. Nor does it appear, aliunde, as in Patteshall v. Turford, 3 Barn. & Adolph. 890, that the attorney undertook to give the notice in accordance with the memorandum. Standing alone, and thus isolated, his private statement in writing is not admissible in evidence against third persons, in proof or explanation of his acts, upon any principle to be deduced from the cases cited, or the authorities upon which they are based. Nor is it perceived that the administration of justice requires the adoption of a rule, which would admit such memoranda as original evidence, inter alios. Stapylton v. Clough, 22 Eng. Law & Eq. 275.

But there is proof of a demand upon the acceptor, and of his refusal or neglect to pay; and after rejecting the affidavit and memorandum of the attorney, there will still remain the testimony of a witness, who states that, in the summer of 1849, when the parties were referring to the drafts in suit, the plaintiff spoke of sueing the defendant, the latter did not deny his liability. He said, as this witness states, at that time, after expressing a wish to have the witness carry him to see the acceptor, that his sole object in going to see him, “ was to relieve himself from liability.” The same witness states further, speaking of the defendant, “it is my strong impression that he admitted his liability.” And further, “it was said by the defendant, that he wished to bring about an arrangement, in order to relieve himself from his liability.” “I heard no suggestion made that the defendant had not received notice.”

Upon this evidence a jury would be authorized to infer that the defendant had been regularly notified as drawer; and we are authorized, by agreement of parties, and are constrained to make the same inference. He did not distinguish between the drafts, as to his liability, and we can make no distinction, upon the evidence.

The plaintiff is entitled to judgment upon both drafts, and according to the agreement, a default of the defendant must be entered.

Shepley, C. J., and Tenney and Hathaway, J. J., concurred.