Walter v. Sperry

The plaintiff brought his action against Albert A. Sperry, since deceased, to recover a balance for goods sold, and the action is continued against his administrator.

Rulings upon evidence comprise the chief assignments of error on the appeal.

The plaintiff, a grain and lumber dealer, delivered the lumber, being part of the goods sued for, upon certain premises used for hotel purposes and owned by the original defendant, Albert A. Sperry, and leased to one Morris, and the material so delivered was used in the erection upon the premises of some bathhouses.

The plaintiff claimed to have proved that these goods were ordered by the original defendant and delivered at his request, and were duly entered as charges against him on the books of the plaintiff.

The defendant claimed to have proved that his intestate leased the hotel premises to Morris for a fixed rental and his agreement to make, at his own expense, certain improvements in the property, including the instalment of a gas plant and the construction and erection of new bathhouses upon the premises, and that he merely introduced Morris as a prospective customer to the plaintiff, and neither ordered, received, nor used this material.

1. The defendant offered a written statement (Exhibit 7, for identification) in the handwriting of the original defendant, and it was excluded. It purported to contain items of expenditures made on said hotel, also items of bills paid by Morris on gas plant and bathhouses, and also items of unpaid bills of Morris on bathhouses and gas plant. Thereupon the defendant, administrator, a son of the original defendant, was inquired of what his father had said about the items of lumber as they appeared on the second page of Exhibit 7. In excluding this offer, the court ruled that the witness might state anything said by his father in reference to his father's dealing with the plaintiff in regard to the purchase or ordering of the lumber. The witness was then permitted to testify that his father, while discussing the items on the exhibit, said he had had no dealings with the plaintiff. Thereupon the exhibit was again offered in evidence, and again excluded.

The paper was a memorandum made by a deceased; it contained matter presumptively relevant to the controversy. These are the conditions which, under General Statutes, § 705, make the entries and memoranda of a deceased evidence. If explanation were required to make its items clearer, the attempt to prove what the deceased said about the items of lumber would have supplied this. Peck v. Pierce, 63 Conn. 310, 312,28 A. 524; Setchel v. Keigwin, 57 Conn. 473, 478,18 A. 594. The plaintiff's claim, that this exhibit and the evidence offered supplementary to and explanatory of its items was irrelevant, is untenable. Douglas v.Chapin, 26 Conn. 76, 92. A further objection is that it does not appear when the exhibit was made up, perhaps after suit brought. Even so, it was admissible, no matter when made. The fact that the deceased made it, and that it is relevant, are the controlling tests. Craft's Appeal, 42 Conn. 146, 153; Allen v.Hartford Life Ins. Co., 72 Conn. 693, 698, 45 A. 955. It is objected, too, that the exhibit must contain some fact or facts to which the deceased, if living, could testify. There is no such limitation in the statute. Its object was to "enable the representatives of deceased persons to sustain just and defeat unjust claims affecting the estate." With this end in view, we admitted the letters of a deceased woman to her counsel stating the facts of her case. Bissell v. Beckwith,32 Conn. 509, 516, 517. The objection that the exhibit contains, at most, only an expression of opinion, fails to properly interpret its contents; its items are statements of fact and not opinion.

The claim that the exclusion of this evidence was harmless, because the witness was allowed to testify to all the father said concerning the purchase and delivery of the lumber, is based upon reasoning whose facts are faulty; and, in addition, the defendant was entitled to the benefit of the written word supplemented by appropriate explanation.

For similar reasons the court excluded the entries of the items in issue appearing upon a book of the deceased (Exhibit 9, for identification), and a paper (Exhibit 10, for identification) containing similar entries.

Evidence of this character was important to the defendant's case. No matter how many times a deceased may have detailed the whole or a part of a transaction on book, paper, or by word of mouth, all are admissible in an action by or against a personal or legal representative of a deceased person, when they are relevant to the matter in suit. In its rulings the trial court placed a narrow and technical construction upon § 705 of the General Statutes, in direct conflict with the broad and liberal construction upholding the legislative intent which we have announced in numerous decisions.Rowland v. Philadelphia, W. B.R. Co., 63 Conn. 415,417, 28 A. 102.

2. In order to prove that the original defendant had not ordered the lumber in suit with which the bathhouses were built, the defendant offered in evidence a bill of sale of the bathhouses, made by Morris to the original defendant. This evidence bore upon Morris' relation to the premises as tenant, and tended to prove the defendant's contention. It was neither irrelevant, immaterial, nor incompetent; nor can it be said to be res inter alios, since it tended to prove an act or fact in the course of the tenancy. This evidence became doubly admissible after proof had been offered that the consideration for the bill of sale was the accrued rental under the lease to Morris.

3. The defendant offered to prove that another lumber dealer furnished some of the material for the bathhouses, upon the order of Morris. Any conduct of Morris in procuring the material for, or causing the erection of, these bathhouses, upon his own credit, tended to prove the contention of the defendant that Morris ordered and built them, and was admissible as an act in relation to the subject-matter of the suit. Proof that a tenant ordered or constructed improvements upon the premises he leased, would tend to prove that the landlord did not order or construct the improvements, and was not liable for their cost.

4. When testimony was offered by the plaintiff that the original defendant had asked him to submit figures for, and had shown him, in connection therewith, a sketch of, the bathhouses, the defendant should have been allowed to present evidence that the sketch had been made at the request of Morris.

5. The question asked of the plaintiff in chief: "Did you or not sell him [the original defendant] goods in 1907?" did not ask for a mere conclusion, as the defendant claims. If it could be so held, no harm was done through its admission, as the witness subsequently related the entire transaction.

6. The question asked on cross-examination of the driver of the plaintiff, who had testified that he had delivered the lumber in suit upon the hotel premises of the original defendant, and then saw Morris: "Did he say anything about the lumber to you?" was properly excluded. It does not appear to have been legitimate cross-examination; and, further, the plaintiff could not be bound by a declaration of Morris unconnected with any act or fact of his tenancy, and made to one outside his agency.

7. The fact that the claim in suit was allowed among the claims against the bankrupt estate of Morris, was not evidence against the plaintiff, since it did not appear that he had anything to do with listing the claim, or had attempted to profit thereby.

8. When the defendant introduced parts of a deposition taken in his behalf, the plaintiff was properly entitled to introduce other parts of the deposition which were relevant and competent evidence. The course taken by the defendant in culling out and offering parts of a deposition taken by him was wholly irregular. The party offering in evidence a deposition taken in his behalf, must present the entire deposition competent and pertinent to the issues involved. Logan v. McGinnis,12 Pa. 27, 32; Lanahan v. Lawton, 50 N.J. Eq. 276,283, 23 A. 476; Kilbourne, Jenkins Co. v.Jennings Co., 40 Iowa 473, 474; 13 Cyc. 983.

The other rulings on evidence, and the parts of the charge excepted to, furnish no sufficient ground for a new trial, and are not important enough to require discussion.

There is error and a new trial is ordered.

In this opinion the other judges concurred, except HALL, C. J., who concurred in the result, but died before the opinion was written.