Jenne v. Joslyn , 41 Vt. 478 ( 1868 )

The opinion of the court was delivered by

Barrett, J.

As no exception was taken to the charge, the only question is, whether the evidence that was objected to was admissible in any aspect of the case. It is of no consequence in what order evidence is introduced, so far as its ultimate legitimacy is concerned, provided, in its relation to the other evidence in the case, it is, in the end, pertinent to the issue. There is a single view of the case which seems to be decisive. The plaintiff claimed a right to the possession of the property by virtue of the attachment and execution named in the exceptions, against J. W. Steele. The defendant claimed to own it by purchase at a sale on another execution against said Steele. The plaintiff alleged that sale to be fraudulent as against the creditors of Steele. After said sale Steele had the property in his possession by permission of the defendant, with authority to sell it, in connection with other property of Steele, at an auction sale in which the plaintiff was to be the auctioneer. In negotiating with the plaintiff in respect to such sale to be made by him as auctioneer, the conversation occurred in which Steele said the things as to which the evidence was given that is now brought in question. After that evidence was given, “ the plaintiff introduced further evidence tending to show that the defendant’s claim to the property was collusive and fraudulent, and that question was submitted to the jury.” This is tantamount to saying that the further evidence tended to show that the defendant and Steele were colluding together in respect to that property for the purpose of perpetrating a fraud on creditors.

. This state of the evidence rendered the evidence of what Steele said pertinent, not only as bearing on the subject and question of fraudulent intent in himself, but also, of fraudulent intent and act on the part of the defendant. It is well settled, and even elementary, that, when evidence is given showing collusion, combination and co-operation between parties, for the accomplishment of an unlawful purpose, it is competent to give evidence of what either party says in connection with acts in furtherance of that common purpose, and it will operate against either of the colluding parties. Such evidence would, of course, elicit proper instructions to the jury as to its legal quality and proper operation, in view of its substance and the relation it should bear to the other evidence in the case. As before rc-■marked, it is assumed that all proper instructions wore given in the present instance.

This case is to.be distinguished from that of Ellis v. Howard et al., 17 Vt., 330, and a largo number of cases of a similar character in the books, many of which were cited in the argument, in which the sayings of the vendor or agent, sought or allowed to be proved, were made after the alleged sale or the alleged agency had transpired, or where the alleged agent had departed from his authority in what he was doing, in connection with his alleged sayings. In those cases, other evidence was not given tending to show collusion, and that the sayings in question were made in connection with the doing of acts in furtherance and consummation of the common unlawful intent of the parties. In The State v. Thibeau, 30 Vt., 100, the law of the subject as applicable to this case is well stated by Aldis, J., and the distinctions are clearly marked. See 1 Greenl. Ev., § 111; also the remarks of Hoar, J., in Lynde et al. v. McGregor, 13 Allen, 179, 180.

This view relieves us from considering a nice question involved in many of the cases cited, as to when-the sayings of an agent-,, or of a person in possession of property, are to be regarded as of the res gestee, so as to render such sayings admissible.

Judgment is affirmed.