Town of Jericho v. Town of Huntington , 79 Vt. 329 ( 1906 )

Haselton, J.

This was an action under the statute to recover for expenditures .in the support of one George EaTulippe, a pauper. Trial by jury was had, and the verdict and judgment were for the plaintiff. It was conceded that the verdict and judgment were right provided the requisite three years’ continuous residence of LaTulippe had been in the defendant town. The exceptions taken and relied on were to the admission and rejection of evidence. The evidence on the part of the plaintiff tended to show that EaTulippe with his family removed from Williston to. Huntington in the fall of 1897, and that in arranging for the removal EaTulippe went beforehand to. the house of John EaFlash in Huntington and engaged board. Under objection and exception LaFlash was allowed to testify to declarations of EaThlippe, connected with the transaction of arranging for board, evincing an intention to reside in Huntington and no< longer in Williston. These declarations of EaTulippe must be considered to. have accompanied the act of removing, and as they characterized the act they were admissible.

It appeared that after EaTulippe removed to- Huntington, he and his wife and children wfere for a time at the home of one Harvey in Hinesburgh. The evidence on the part of the plaintiff tended to show that the time was about one week, and that they we're there temporarily helping Harvey, during a sickness, to do- chores and other work, with the intention of returning as they did to. Huntington.

The evidence on the part of the defendant tended to. show that EaTulippe was in Hinesburgh about two weeks, that he went there to. reside, and was residing there under an agreement by which he was to carry on Harvey’s farm for a year, board and care for Harvey, who. was an old man, and cut and draw wiood on shares from the farm to the market. The character of EaTulippe’s stay in Hinesburgh being in dispute, the defendant offered to show that at some time after he had gone back to. Huntington- and before he went to- the plaintiff town, ■ EaTulippe told one O’Brien that he left Harvey’s because of a misunderstanding; “that he couldn’t get along with the old man and therefore threw up- the contract under which he had gone to- Harvey’s to reside.” Evidence under the offer ■was excluded, and its exclusion was proper. The offered evidence accompanied and characterized noi act, and was in no sense any part of any res gestae. It was not receivable under the rule relating to the admissions of parties, for LaTulippe was not a party. It was not admissible as impeaching evidence, for LaTulippe was not a witness, and if he had been, a foundation must have been laid for such evidence.

The defendant called one Michael Bradley and offered to show by him that a day or two before LaTulippe went to Harvey’s, Bradley called his attention to. the fact that Harvey “wlanted a man to go> onto, his place to stay for a year to cut lumber or wood at the halves and draw it away and live with the old man and take care of him.” This evidence, as the court held, was inadmissible. It was no evidence tending to show what the arrangement between LaTulippe and Harvey actually was. A party’s claim as to' what a contract was cannot be supported by such evidence. The offered evidence did not tend to show why LaTulippe went to Harvey’s, since for anything that appears, the conversation may well have been had after Bradley was informed that LaTulippe w"as going to Harvey’s for some purpose. There was a further offer to show that two or three days after this conversation Bradley saw LaTulippe at Harvey’s and, in the language of the offer, “to show what he saw LaTulippe doing there,” meaning, of course, at that time. The evidence thus further offered was excluded, and in its exclusion there was no. error. It would have been immaterial to show-that Bradley saw LaTulippe at Harvey’s, for the evidence on both sides tended to show that he was there, and it would have been-immaterial to1 show that Bradley saw LaTulippe doing something while there, since the evidence on both sides tended to> show that he was there at work. If the defendant desired to1 show that his witness saw LaTulippe doing work at Harvey’s that made in favor of the defendant’s claim as to- the arrangement under which DaTulippe was there, the offer should have been specific enough to- make the relevancy of the offered evidence apparent to the court.

Judgment affirmed.