McKenney v. Waite

The opinion of the Court was by Weston C. J. The orders signed by Bradbury, and his books, were properly excluded. They were but statements in writing of a third person, without the sanction of an oath. Such statements of a deceased person are not generally to be received in testimony. There are exceptions to this rule, as [351] when they are made by a deceased clerk upon the books of bis employer, or made in some official character ; but they do not embrace this case. The case finds, that the defendant was the owner of the land, from which the logs were cut, upon which the plaintiff was employed, that he owned the teams, and that the timber w7as to remain his property, until he was paid for his claims and advances. It further appears, that Simeon Bradbury, who had contracted to buy the timber at a stipulated price, and who had charge of the teams, was deeply insolvent, and there was evidence tending to prove, that Bradbury could not obtain laborers on his personal responsibility. The defendant, retaining a lien on the property, had hired the deponent, Furlong, as a laborer in the prosecution of the business, undertaken by Bradbury. When he made a bargain with the deponent, he said “ here is Mr. McKenney, who is also going.” After they had labored about two weeks, the defendant got some more men, and told the deponent to call on Mr. McKenney to go up again, which he did, working in all about thirty days. The part of the deposition objected to is, that from the defendant’s words, at the time he hired the deponenl, he understood that he hired the plaintiff and was to pay him. How far the defendant was to be held liable, by reason of the words used, was a question for the jury, and they could not be extended beyond their just meaning, whatever might have been his understanding. If however he gave their import fairly, connected with the facts, it would furnish no sufficient ground for setting aside the verdict. It is very apparent, that the words themselves, if the defendant had no connection with the business, are not evidence of any assumption of liability on his part. But taken in connection with the subject matter and the acts and declarations of the defendant, the deponent might well have understood, that the defendant hired and was to pay the plaintiff. The deponent says he so understood the words used; but the acts of the defendant and the subject0 matter must have been connected in his mind with the words, to produce this [352] understanding. And we cannot say, that taken together, they do not justify this deduction. The timber remained the property of the defendant. The labor of the plaintiff gave it an additional value. Bradbury was insolvent and consequently without credit. The deponent was employed by the defendant, and looked to him for payment. He said McKenney was also going, and he was sent again' by the defendant, through the agency of the deponent. The latter understood the defendant hired and was to pay him. The whole matter was left to the jury. They had all the data, from which this conclusion was drawn. And although we are of opinion, that the answer of the deponent objected to, ought not to have been received, yet it does not furnish sufficient ground to disturb the verdict, which, in our judgment, is sustained by evidence in the case, which is unexceptionable.