Carpenter v. . Tucker

MeukimoN, J. On the trial the plaintiff offered in evidence certain notes, under seal, which it was alleged he had sold to the intestate of the defendant, and the latter objected to their admission “because they were not assigned or transferred or endorsed in writing by the plaintiff.” The Court admitted them, and this is assigned as error. It is true the legal title to the notes did not pass without endorsement, but it is just as true that the equitable title may have passed without it, and it was competent to show this fact. The-notes may have been introduced for the purpose of identifition or other purpose than to show the legal title to them,, and they were obviously competent, unendorsed, for any pertinent purpose. On a former trial of this action, which resulted in a mistrial, T. I. Polk w^as examined as a witness for the plaintiff,. *318 and he died before the last trial. At the first trial the coun.sel for the plaintiff “ took full notes of the evidence offered/’ including that of the deceased witness mentioned. On the last trial this counsel was examined as a witness for the plaintiff, and he stated that by refreshing his recollection from the notes of evidence taken by him on the former trial, he could and did remember the substance of the testimony given on the former trial by the deceased witness Polk. The defendant objected. The Court allowed the witness to so testify and this is assigned as error. The objection is groundless. The witness might refresh his recollection by the notes of evidence mentioned, and when he declared that he remembered the substance of what the deceased witness had testified to on the former trial in this action between the same parties, he qualified himself to testify as he was allowed to do, and any objection went to the weight, not to the competency of the evidence thus elicited. Jones v. Ward, 3 Jones, 24; Wright v. Stowe, 4 Jones, 516; Ashe v. DeRossett, 5 Jones, 299. A witness for the plaintiff was examined as to what the intestate of the defendant had said to him in respect to the purchase of the plaintiff’s interest in a certain mill, the deed therefor, the price paid for it, and what he intended to do with the mill, &c. The defendant objected to the admission of such evidence “because incompetent under the statute of frauds and irrelevant.” What the appellant intends by this •exception is not at all clear, but we suppose it implies that it was not competent for the witness to speak of a sale of real estate that must be evidenced by s, proper deed of conveyance without producing the deed. If so, the objection is ¡untenable, because the deed and its contents were not at all in question; the purpose was to give evidence of a transaction in respect to the mill that did not involve the title to it. The evidence was relevant because it went to prove that the *319 plaintiff had delivered the notes to the intestate of the defendant as the plaintiff alleged. The defendant was introduced as a witness in his own behalf, and was asked to “repeat a conversation between himself and his intestate” in respect to the notes and the deed of conveyance in question. Upon objection of the plaintiff to the proposed evidence, the Court sustained the objection, and properly, because it was simply hearsay. The defendant alleges in his answer, that the plaintiff and himself had agreed in writing “to arbitrate” the matters in controversy in this action, that this agreement was current at the time the action was begun, and he avers his readiness to abide the result of such arbitration. This agreement was not made an order of the Court in this action, nor with the sanction 'of the Court, and it was executory, independent of and apart from the action. On the trial the defendant requested the Court to submit to the jury this issue, “Did the plaintiff and defendant, before the commencement of this action, agree to arbitrate the matters in controversy, and if so, did the plaintiff refuse to comply?” The Court properly declined to submit it. The pleadings raised no such issue. The agreement to arbitrate was not a defence in this action. If the plaintiff, having agreed to arbitrate as alleged, afterwards refused to comply with the agreement, such breach thereof might be a cause of action, but not one to be set up as a defence in this action— it was foreign to and had no connection with the latter as a litigation. The appellant was not in any view of the evidence entitled to have the special instruction given to the jury which the Court declined to give. There was clearly no evidence that warranted it, and the Court should never present to the jury a Mew of the case, or an important part, or branch of it, when there is the absence of evidence that might reasonably *320 lead, them to adopt and act upon it. To do so could serve no just purpose, while it would almost certainly mislead or tend to do so. The errors assigned are unfounded, and the judgment must be affirmed. No error. Affirmed.