Hotchkiss v. . Mosher ( 1872 )

Upon the trial of this action, the plaintiff was sworn as a witness, and after testifying that he had guaranteed a number of notes, was asked the following question: State what notes you have guaranteed? To this question defendants' counsel objected, on the ground that the notes could not be proved by parol. The court overruled the objection, and the witness was permitted to answer. The ruling violated no rule of evidence. The question was merely preliminary, and the witness could properly describe by parol the notes which he had guaranteed. Even if it was necessary for the plaintiff, to sustain a recovery for the five notes, either to produce them or to prove their contents by secondary evidence after laying the proper foundation, this objection to this question, at this stage of the trial, did not raise the question, and it was not raised, in any form, at any other stage. The parties seem to have assumed that the character and value of the five notes were sufficiently and properly proved to sustain the action, and the only question litigated was whether the defendants had sold the notes to the plaintiff, and vested him with the title to them, so that he could maintain an action for the conversion of them. But the question was not improper in any aspect of the case. In an action of trover to recover for the conversion of written obligations, the defendant is supposed to have them, in his possession or under his control, and the action itself is notice to him to be prepared to produce them upon the trial, or to be ready to prove their contents. (How v. Hall, 14 East., 274; People v. Holbrook, 13 Johns., 91; Bissel v. Drake, 19 id., 67.)

The defendant Mosher was sworn as a witness on his own behalf, and testified that the defendants kept in their bank a book in which were entered all notes left with them for collection, and he was then asked the following question: "Will you state whether, if these notes had been left for collection, they would have been placed to that account?" To this question plaintiff's counsel objected, and the court sustained the objection, and this is claimed as error. I am of the opinion that this claim is not well founded. The witness was permitted to testify that the bank kept such a book; that all notes left for collection were entered in it, and that these notes were not so entered. This was sufficient to show what the custom and the mode of doing business at the bank were, and if this additional question was intended to prove simply the usage and course of business at the bank, it was wholly unimportant, as they were sufficiently proved. If it was intended to prove more, then it was incompetent, as calling for the opinion of the witness as to what would have been done by himself or others.

It is probably true that, at the time of the alleged purchase of the notes by the plaintiff, he took a certificate of deposit for the money he paid in the ordinary form. This circumstance was important evidence bearing upon the question of the alleged purchase, but was not conclusive. If the sale was in fact made, it matters not what form the transaction took. If the referee had found that the certificate of deposit was given for the money, it would not have affected his conclusion of law, and hence he committed no material error in his finding, or refusal to find, upon that point.

I have examined all the other allegations of error, and it is sufficient to say that I do not deem them well founded. The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.