Fiske v. Gowing

Smith, J. The precise question raised in this case was decided in Eaton v. Rice, 8 N. H. 378, where it was held that a witness may state generally what he understood a contract between two persons to have been from their conversation, although he may not be able to state the language used in making the agreement. See, also, Maxwell v. Warner, 11 N. H. 568, Norris v. Morrill, 40 N. H. 395, and Jackson v. M'Vey, 18 Johns. 330. It rarely happens that two persons are able to give precisely the same account of a conversation. Their narration will differ more or less according to their intelligence, their interest in the subject-matter, their oppor *433 tunities for hearing, their prejudices for or against the parties, the lapse of time since the conversation occurred, and a variety of other circumstances. Emphasis thrown upon the wrong word might convey a meaning different from that originally intended. Often the manner in which a remark is made, and the conduct and appearance of the party, may have much to do in producing the understanding that was received, much of which it is difficult and sometimes impossible for a witness to describe. ■ It was a vital question whether the defendant understood or had a right to understand, from what was said and done, that the request for a certificate was waived or withdrawn. He might have received his understanding in part from the conduct of the officer, and in part from what was said between them and from the way it was said. To confine the witness to a mere narration of the language used, if he were able to recall it, might give the jury an imperfect and erroneous idea of the actual understanding of the parties. The request for a certificate might be waived expressly, or by a mutual understanding that it was waived. If the defendant might reasonably understand, from all that was said by Holt and from his conduct, that he had obtained all the information he desired or which a certificate would give him, he might and probably would conclude that Holt waived his request for a certificate; and Holt, by suffering him to receive and act upon such an understanding, would be estopped to assert the contrary. It was a question of mutual understanding. Such evidence has been so commonly received that the question of its admissibility can hardly be said to be an open one. Case discharged. Carpenter, J., did not sit: the others concurred.