Wilson v. Pope , 1861 N.Y. App. Div. LEXIS 219 ( 1861 )

Allen, J.

The acts and declarations of the plaintiff’s testator, the obligee in the bond, which were given in evidence to the jury to overcome the proof of payment in February, 1857, were inadmissible under the general rules of evidence which exclude the acts and declarations of a party made in the absence of his adversary, as evidence in his own favor. The declarations of a third person entirely disinterested are ordinarily inadmissible as evidence of the facts stated, and the individual must be called as a witness, if living; and if deceased, his declarations are nevertheless excluded, as they would be but hearsay and secondary evidence of the alleged facts. Unless, then, the evidence offered and given comes within some of the very few exceptions to the general rules referred to, it should have been excluded, and its admission was error, In a single class of cases the acts of a party in interest, in the ordinary course of business, and when proved to have been done at the time they purport to have been done, and when they were against his interest, have been allowed in evidence in his favor. To overcome the presumption of payment arising from lapse of time, or to take a case out of the statute of limitations, an indorsement on a bond or note, made by the obligee or promisee, is admissible in evidence when shown to have been made at the time of its date, and when its operation would be against the interest of the party making it. The indorsement must be made before the remedy has been impaired by lapse of time. (1 Greenl. Ev. § 121.) The leading case establishing this exception to the general rules of evidence is that of Searles v. Lord Barrington, (2 Strange, 821; 8 Mod. 278, and 2 Ld. Raym. 1370.) The action was upon a bond given in 1697, and sued by the representatives of the deceased obligee in or after 1723. The obligor died in 1710, and the obligee died some time after. The indorsements relied upon purported to have been made, the one in 1699, and the other in 1707, and before the remedy was impaired by lapse of time. And it would seem that there was some evidence that they were made at their respective dates. The case has been adopted and followed, with the qualification to the rule supposed to be authorized by it, to wit, that the indorsements must be in fact made before the presumption of payment arises, or they will be inadmissible in evidence. (See per Baily, B., Gleedow v. Atkin, 1 Cromp. & Mees. 410, and per Ld. Hardwicke, 2 Ves. 43.) Roseboom, v. Billington (17 John. 182) is in point. Rose-boom sued Billington on a note dated January 9, 1808, and the action was brought in 1817. The plaintiff, to take the case out of the statute of limitations, offered to prove an indorsement of a partial payment on the note, in his own handwriting, dated October, 1811. It was rejected, and the - plaintiff brought error. The judgment of the common pleas was affirmed, upon the ground that there was no evidence that the indorsement was made at a time when its operation would have been against the interest of the party making it. Spencer, O. J. says, “ It is a fundamental principle that the private ex parte acts of an individual shall not be evidence for him, unless those acts were in collision with his interest at the time. To admit evidence, of the party’s own creating, I consider repugnant to every sound principle of law. Declarations by a party in his own favor never can be admitted, and herein consists the difference between his declaration that he had received a partial jjayment and his written acknowledgment of such payment. They are liable to the same objection, as coming from an interested source. Here the indorsement on the note was favorable to the plaintiff’s interest, for he thereby repels the operation of the statute of limitations and names the balance; whereas without such indorsement, the demand would be barred.” A payment of interest after the time of the alleged payment in fact of the principal, would be strong and indeed conclusive proof of the untruth of the allegation of payment, and to this point the indorsement was submitted to the jury as evidence, assuming the fact in dispute that it had not been paid; and the indorsement was against the interest of the party making it, but was entirely immaterial, as there was no controversy as to the amount due if the principal had not been paid. If, on the other hand, the principal had been paid, the indorsement was favorable to the party making it, and was inadmissible. Whether the indorsement in 1858 was or was not favorable to the party making it, depends entirely upon the question whether the principal debt was paid in 1857, which was the issue to be determined; and it follows that the indorsement cannot be legitimate evidence to establish the fact, to wit, the non-payment in 1857, upon which it depends for admissibility, and which, if established by other evidence, would render the indorsement unnecessary. When a bar growing out of lapse of time or depending on the statute of limitations is relied upon, on its being shown that the indorsement was made, the law determines whether it was, when made, favorable or unfavorable to the party making it. It is to reason in a circle to say that the indorsement was unfavorable to the party making it because it acknowledged the partial payment of an existing debt, and that the debt was an existing debt because the indorsement proves the payment of interest at that date. (See Freeman v. Kelly, Hoff. Rep. 93.) The justice ruled that the indorsements were competent evidence, and they were submitted with the other evidence, upon the only issue in the case, and necessarily had more or less influence on the minds of the jury. As the acts and declarations of the obligee they were not competent evidence in behalf of his representatives, and should' have been excluded.

The declaration of the obligee in March, 1858, concerning the debt, and that it was still unpaid, was, if possible, still more incompetent. It was in no sense a part of the res gestee, or a part of any transaction with the defendant, any more than any ex parte declaration he may have made concerning their dealings before or after the interview with the defendant. Ho declarations that he might make, before or after, will affect the defendant, or qualify or give character to the transactions between the parties. It doubtless was competent, as suggested by the plaintiff's counsel, to know what the obligee went to the defendant's office for, on that day; but it should haVe been proved by what he did, not by his own ex parte declarations. They did not accompany any act of the obligee which was properly evidence • in his favor, and were not connected with any act. It was a casual conversation with the witness, not influencing or designed to influence or affect the dealings or relations of the parties to the bond.

The evidence in relation to the bank deposits of the obligee and testator was also inadmissible. The inference that he did not receive the money because he did not deposit it in a particular bank, was quite too remote to be-legitimate, and yet it is quite palpable that the evidence must have had its weight with the jury.

The motion for a new trial must be granted; costs to abide the event.

Bacon and Mtjllin, J ustices, concurred.