Whitcher v. Morey , 39 Vt. 459 ( 1867 )

The opinion of the court was delivered by

Steele, J.

I. The defendant, among other things, detailed in the exceptions, claimed that the hemlock bark, in dispute, was his property, because produced by his land. The plaintiff does not question the defendant’s legal title to the lot of land, from which the hark was cut, but insists that Benjamin Comings, who sold the bark to the plaintiff, had a right to peel and appropriate bark from the trees on this land, because Comings and the defendant had verbally agreed upon and bargained for the sale and conveyance of the lot, from the defendant to Comings, and Comings had, on his part, performed the terms of the agreement, and delivered the purchase money, notes and mortgage into the hands of a third person, as directed by the defendant. The defendant on his part neglected to leave a deed for Comings, with this third person as he had agreed, and ultimately refused to convey. The defendant does not admit the agreement, and the performance on the part of Comings, as claimed, but the court told the jury that even if they found these facts in favor of the plaintiff, still this verbal agreement, for the sale and purchase of the lot, connected with the performance of the agreement on the part of Comings only, would not of itself, as a matter of law, authorize Comings, the purchaser, to enter upon the land, and cut or peel the bark. This is the proposition which comes here for revision, and is the only portion of the charge to which the plaintiff objects. The issue of fact, which arose upon the evidence, relating to a permisión to enter upon the land, was submitted to the jury by the court in a manner satisfactory to the plaintiff’s views of the law, the court ruling, that the fact, if found, of this verbal bargain, followed by the performance on Comings part, might, with other things, be evidence to be considered upon the issue of a license, or permission. The question, therefore, on this branch of the case, is simply whether a verbal contract for the purchase and future conveyance of real estate, followed by a payment, and securing of the price, according to the agreement, is of itself, as a matter of law, sufficient to authorize the purchaser to enter upon the possession and enjoyment of the land to be conveyed. If it is sufficient, it must either be upon the ground that it confers upon the vendee an equitable interest in the land, with a consequent right to the immediate use of it, or upon the ground that without conferring any interest in the land it amounts, in law, to a permission or license to enter upon and enjoy it. The bargain is but a promise. It vests in Comings no interest in the real estate. He gets by the agreement only the promise of an interest. Nor does the payment operate to invest him with any title. I-Iis equitable and legal claim is for the money paid, if the land is not conveyed. It has been held, that when such a verbal purchase and payment is followed by possession, with the consent of the vendor, equity will treat the case as without the statute of frauds, and will decree a conveyance. The rule has never been extended to cases where the possession has been taken without the consent of the vendor, and the return of the money can be had by the purchaser. The vendee’s claim is not strengthened either at law or equity by such possession. It is possible that there might bo peculiar circumstances, which would demand equitable relief, but ordinarily the recovery of the money paid under such an invalid contract is adequate relief. If a conveyance would be decreed in all cases of a parol purchase and payment, the statute, requiring contracts for real estate to be in writing, would be substantially nugatory. Nor can a verbal agreement to deed, even though made upon consideration, amount, as a matter of law, to a permission to enter upon the possession of the land before it is conveyed. The agreement to convey does not necessarily imply that any entry or right of entry is contemplated by either party, except as the incident of the transfer of title, which will carry with it the right to enter. The promise, as we have seen, vests no right in the land, which is to he the subject of the future grant, and it 'cannot be assumed, as a matter of law, that the parties intended by the promise more than its legal effect. It may be so connected with other statements, and made under such circumstances, as to amount to a permission to enter before the conveyance is made. Whether such was the intention and understanding of the parties is a question of fact for the jury, and was so treated by the court. The fact relied on by the plaintiff, that he intended to operate on the land immediately, and that the defendant knew his wish does not convert this into a question of law. That fact, if found, was only evidence with others upon the question of the understanding of the parties as to the permission. Nothing more is required than the example of this controversy, now for the third time in this court, having been the subject of two jury trials, and one suit in chancery, to demonstrate that it is the business duty, as well as legal right of parties dealing in real estate, to treat the whole matter as incomplete, and as conferring no right to the land until the terms of their contract, the mode of payment, the amount, and nature of the security are definitely settled, and evidenced as the law requires. It certainly is not to be presumed, as a matter of law, that the vendor has authorized possession before his conveyance has been made, and its terms approved and accepted, merely because he has promised that he will convey. Indeed that fact, standing alone, would be not even evidence of a permission or license to enter upon the land. The cases cited, with reference to a sale of growing trees, and an implied license to enter upon the land to remove them, do not apply to this case. Such cases are sales in presentí, not mere agreements to sell. They are not-intended by 'the parties to be made a matter of deed, and by their terms contemplate an entry upon the land without further conveyance if at all; while in this case a deed was to evidence the consummation of the contract, and the right of possession is part of the subject matter, which passed by deed. Here the giving of the deed was something more, which the parties understood remained to be done, and while it remained undone, the sale was incomplete, and no rights to the subject of the contemplated deed passed. TV"e think the exception to the instructions of the court to the jury is not well taken.

II. Several questions are reserved with relation to the admission and rejection of testimony. The testimony explaining the circumstances and qualifications under which the defendant was led to sign and swear to his bill in chancery, was not intended to contradict his oath, but to state its original meaning. Though it would have been far better to have taken time to draw the bill correctly, and so as to avoid the necessity of such an explanation, we are not prepared to say, that the party is so committed by the bill, as to be estopped from explaining it, and we think the evidence was properly received. The depositions taken by Mr. Dickerman, as a master in chancery, are objected to, because Mr. Edwards, the partner of Mr. Dickerman, acted as counsel for the defendant in taking them. It is not necessary to say, what would be the decision of the court, if the case showed that the master and the attorney, by the terms of their partnership, shared each other’s fees, for the evidence entirely failed to disclose the nature or extent of their partnership, and we cannot presume that it covered business of this nature. The objection to the depositions as being unstamped, we understand, is not relied on, the omission of the stamps being unaccompanied with any fraudulent design. The testimony from Paine, which was received against objection, was, we think, clearly admissible, as connected with the testimony of Comings, repeated by Dewey.

III. Comings, who had been a witness for the plaintiff on a former jury trial of the cause, deceased before the trial now under revision. The plaintiff was at liberty to reproduce his testimony if he was able to do so in a proper manner. For that purpose the plaintiff proposed to read a copy of the minutes of Comings’ testimony, as taken by the judge, who presided at the former trial. The original minutes being lost, and the copy being an. accurate transcript, as the plaintiff offered to show, the copy would doubtless be admissible, provided the original would have been if produced. The original minutes would not themselves have been receivable, unaccompanied by proper proof of their correctness. The j udge’s notes of the testimony are taken for his own guidance, and are not so required of him as part of his official duty, as to make them admissible in evidence without the usual proof of their accuracy. To make this proof the plaintiff offered the deposition of Judge BaRRett, who took them, in which the Judge states, that he took “full minutes of the testimony of Comings with substantial correctness.” Is this a sufficient verification of their completeness, and accuracy to warrant their being read to the jury? There being no question upon any other ground of the admissibility of the deposition and the plaintiff offering to prove that the original minutes were lost, and that the copy was a correct transcript, the question stands precisely as it would, if the judge had produced the original minutes, and had himself gone upon the witness stand and testified that they were “full, and taken with substantial correctness.” A more complete verification of minutes taken upon a trial could seldom be made. A prudent man would not be likely to profess to a greater accuracy in taking notes of the evidence. If the witness had claimed to be able to repeat from memory the full testimony of the deceased witness, with substantial correctness, we think he should clearly have been allowed to do so. A higher degree of certainty would not be required in proving the words, if they were the subject of an indictment for perjury,/or of a declaration for slander, and in each of these cases, there is reason for greater strictness than in this case. This degree of certainty has been often held sufficient in England, and in other states, as well as by our own court. Todd v. Winchelson, 3 C. & P., 387 ; 1 Green. Ev., p. 218, citing Corvell v. Green, 10 Serg.& R. 14, 16, and many other cases. In State v. Hooker, 17 Vt. 662-70, the testimony of the deceased witness was proved by the justice, who stated, “that he could not give the precise language of the witness, but only the substance of his testimony upon the examination in chief, and the cross-examination,” and this was held sufficient certainty. In Marsh v. Jones, 21 Vt. 382, the justice, whose evidence was held to have been properly received, professed to give the substance of the testimony of the deceased witness in his very words, but could give none of the cross examination, and was able to state only from his habit in taking minutes, that the cross-examination “ did not qualify the testimony in chief.” The rule always requiring the testimony in cross-examination, as well as in examination in chief, it certainly cannot he said, that the cross-examination was more than substantially given in this case. In Downer v. Rowell, 24 Vt. 344, the attorney, who was held to have been properly examined as to the previous testimony of a deceased witness, professed to do no more than to give “the substance of the testimony.” To require a greater certainty would in most cases amount to excluding the party from the benefit of the former testimony of the deceased witness, and would be in direct conflict with the authority of the later English and American decisions, and the three well considered cases of our our own court, which have been referred to. But it is claimed that even if this degree of certainty is sufficient, that the minutes should not have been read to the jury, hut should have been used only to refresh the memory of the party who took them, and he should then have testified from his recollection, and that, whether or not they may be properly read to the jury, if the witness testifies that on examination of them his mind recalls the testimony, they cannot be read on mere proof that they were taken correctly, without proof that the testimony of the deceased is remembered by the judge at all. This somewhat fanciful distinction is supported by some authority, but by none in Vermont. In Glass v. Beach, 5 Vt. 173, Marsh v. Jones, 21 Vt. 378, and Downer v. Rowell, 24 Vt. 344, the reading of the minutes to the jury was approved, and in the first case the minutes were not made upon the trial, nor before the death of the witness, and it does not appear in the case that the justice, who made them retained at the time they were used, any recollection of the testimony. In the second of these cases, the justice expressly stated, that “he could not say that he had any distinct recollection of the words of the witness, aside from his minutes and in the third case the witness said, that he could not state “the substance” of the testimony on the cross-examination, “without reading from his minutes,” and in this last case the court say, that “the consideration, that the wif ness could not swear from memory, is not at present regarded as important. All that is required is, that the witness shall be able to state that the memorandum is correct. He may then read it as well as repeat it. The old rule, that the witness must be able to swear from memory, is pretty much exploded.” Upon the reason and authority of these cases, we think it very clear that the plaintiff was entitled to the benefit of the former testimony of Comings from the proven eopy of the Judge’s minutes which were lost. In Church v. Phillips, 6 E. C. L., p. 409, it is said, that if the witness cannot swear to the fact from recollection, farther than as finding it entered in a book or paper, the original book or paper must be produced, but in that case, and in those upon which it relies, no offer was made to prove the loss of the original, or any fact to excuse its non-production, and the decision was clearly right as merely calling for.the best evidence. The object in the case before us was to reproduce the testimony of the deceased witness, Comings, and that could quite as satisfactorily be done by a memorandum, proven to be substantially correct, as by the uncertain memory of a witness, who attempts to detail it.

For the error in rejecting this testimony, the judgment must be reversed and the cause remanded.