Flood v. . Mitchell

Miller, J. This action was brought to recover for work and labor performed by the plaintiff for the defendant in the construction of a racecourse. Hpon the trial one Salter, who was a civil engineer, testified that he was present at a conver *511 sation had between the parties in regard to the grading and building the racecourse in question, and subsequently, at the request of the parties, reduced the oral agreement to writing, with the understanding that they were to call at his office and sign it the same evening; that the writing contained' the agreement as directed to be drawn, with the exception of two articles in the same. The witness further stated, in his direct-examination, that he could not state the whole of it without a reference to the writing, but upon his cross-examination testified that he could recollect the substance of the conversation after reference to the paper. The parties never called for the purpose of signing the agreement in question, and it was never executed in accordance with the original intention. It was offered in evidence by the defendant, objected to, excluded by the court and an exception taken to the ruling. The writing in question was not admissible as a memorandum, made at the time, of what actually took place, because the proof established that it was not an accurate statement of the conversation and agreement between the parties ; and it appears that it only embodied the result of the conversation had, and contained language different.from that used, as well as some provisions which were not in the verbal contract. ¡Nor was it competent, with a view of refreshing the recollection of the witness, within the principle of some of the cases cited, for he testified that, after reference to the paper, he did recollect the material part of the conversation; thus rendering it unnecessary to read the same in evidence for the purpose of showing what it really was. Minutes of evidence taken by counsel in a former trial, who produced them, and swears that he has no doubt of their accuracy, but has no recollection independent of the minutes, may be read, and are competent evidence. (Halsey v. Sinsebaugh, 15 N. Y., 485.) So, also, a memorandum made contemporaneously with the facts to which it relates is admissible as auxiliary to the oral testimony, where it appears that the witness is unable, with the aid of the memorandum, to speak from memory as to the facts. (Russell v. H. R. R. R. Co., 17 N. *512 Y., 134; Guy v. Mead, 22 id., 462.) But the rule stated has never been extended so as to allow the admission of papers drawn for the purpose of reducing a contract to writing which contained provisions not agreed upon and were deductions from what had passed between the parties, and where the witness’ memory had been refreshed by a reference to the papers so as to recollect the substance of the conversation. In such a case it would be unnecessary to read the paper for the purpose of showing what the conversation actually was; and the reason for the rule, laid down in the authorities citpd, does not apply. These are cases where a portion of a writing which is competent evidence for some purposes may not be incompetent, because it contains other statements which are inadmissible. (The Dutchess Co. v. Harding, 49 N. Y., 322.) This principle, however, has no. application to the writing in question. It is insisted that the memorandum was competent, because it was made by the common agent of both parties. While the account of an agent of a party acting on his behalf where such agency is established may be competent against his principal, as is held in some of the decisions cited by the appellant’s counsel, when such an account, or even when some instrument signed by such agent, is the subject of, and has a material bearing upon, the controversy, it is difficult to see how this doctrine can have any application to a written paper or - memorandum which was drawn by the direction and authority and was intended to express and contain the agreement of the parties; but which had never been executed, ratified or approved by such parties. The authority to draw such an instrument does not establish the relation of principal and agent between the parties who conferred it and the person who draws the same so as to make it binding before it is executed and approved. At most, Salter, who drew the paper in question, was the attorney, or scrivener to put the verbal agreement talked of in writing, and until signed by the parties it was inchoate and imperfect, subject to revision and correction as they might agree, and in no sense obligatory until executed. It was not a contract and hence could not bind *513 any one. It follows that there was no error in the exclusion of the evidence offered. The offer to show by the defendant that it was worth $500 to fill up the track to the grade established, was improperly excluded. It was stated at the time, that the testimony was offered for the purpose of showing that there was a substantial failure to perform the agreement and not to prove the amount of damage, and no objection was made to the offer on the ground that it was improper in form. The testimony would tend to prove that the plaintiff had failed tó fulfill his contract and as that was a question at issue and the proof offered would contradict the plaintiff’s evidence on that subject and tend to establish that the plaintiff was not entitled to recover, it was clearly admissible. ¡Nor was the error in excluding the testimony obviated because the same witness had previously given some testimony on the subject and had sworn that he did not know how many yards of earth he had drawn to supply the deficiency, or because he after-wards had testified to the number of loads that he had drawn for this purpose. While the testimony last mentioned was relevant to establish a failure of the plaintiff to fulfill his contract, the subsequent offer would more fully present the actual loss by such failure and was competent as additional and cumulative testimony upon the same subject. ¡No exception was taken to the decision of the judge rejecting the evidence offered, to thé effect that Salter had examined the track and found that it did not come up to the grade established by the engineer, and the point therefore cannot now be considered. The several refusals of the judge, to charge as requested, also, do not appear to have been excepted to, so as to present the questions now raised in regard to the same. The charge of the judge, to the effect that if the work was not fully completed, the plaintiff was entitled to recover for the work actually performed, because the defendant had taken possession and all he could claim was the difference between what he was to pay the plaintiff for doing the work, and what *514 he had to pay for completing it, is conceded to be erroneous. It is claimed, however, that the difficulty was obviated by the finding of the jury that the plaintiff had fully performed his contract, as it was alleged and shown on behalf of the defendant. There was, as we have seen, some evidence to show that the defendant was obliged to do some considerable work to fill up and to complete the grade, and had the evidence erroneously excluded been received, it is by no means clear what effect it might have had upon the verdict of the jury. In this aspect of the case, it is by no means apparent that no injury was done. In fact, as the case stood, it may well have been that this palpable error of the judge may have had an effect upon the minds of the jury and prevented their regarding the evidence of the defendant as they otherwise would have done. It is exceedingly dangerous at any time to allow a wrong proposition of law to be laid down in the charge of the judge to a jury, and it can scarcely be held in this case that it is so entirely plain beyond controversy, that no injurious effect could ensue that it can be ■ overlooked and disregarded. Ho other question demands discussion, and for the errors stated the judgment must be reversed and a new trial granted, with costs to abide the event. All concur. Judgment reversed.