Rich v. Jakway

By the Court, T. R. Strong, J. It was a question on the trial before the justice, whether the direction or proposition of the defendant to Freeman to shoot the gun, was to shoot at the tin pipe on the plaintiff’s building, or at a martin cage on a building of the defendant. That appears to have been the only question seriously litigated; for it was proved on the part of the defendant, as well as on the part of the plaintiff, that Freeman was -told to shoot, by the defendant. It was not competent for the plaintiff, in reference to that question, to inquire of Freeman whether he would have shot at the pipe if he had not understood from the defendant that he would pay the damage ; and whether he did shoot with the understanding, from the defendant, that he would pay the damage. The understanding of Freeman of what the defendant would do, in regard to the wrongful act, could be [359] learned only from the transaction itself, including what was said between him and the defendant relating to it, and all accompanying circumstances. It was to be inferred from such evidence; and the inference belonged exclusively to the justice. The defendant was not responsible for the act, unless what he said and did justified such- an understanding by Freeman, or induced the act; and this also was for the justice to determine, upon the like evidence before him. As well might a party to a contract, in a case where he may be examined, be permitted to testify as to his understanding of what the contract was, without or after giving what was said, as testimony like that in question be received. It is very clear that such evidence is not admissible in regard to a contract. The doctrine was distinctly held in Murray v. Bethune, (1 Wend. 191.) Sutherland, J., who delivered the Opinion of the court, there says: “ Any act or declaration of either party connected with the transaction, whether prior or subsequent thereto, may be given in evidence in order to show what the agreement was. ' A fact is thus proved, from which a jury may infer the understanding or intention of the parties ; but the mere impression or understanding of one of the parties, not communicated to the other, can never justify the inference that the understanding of the other party was the same ; and in order to constitute a contract or agreement, the assent of both parties is requisite. It would be a most dangerous relaxation of the rules of evidence. There would be no possibility of convicting a witness of perjury, on the ground of such evidence. This understanding of a transaction, if it may be called a fact, is one resting entirely in his own mind, and which cannot be disproved. There is nothing peculiar in this case, to take it out of the general rules of evidence.” Here it was at least necessary, in order to charge the defendant with procuring the act, that it should appear he said and did what amounted to a request or direction to commit it; from which it might be inferred that it was so understood by both Freeman and the defendant. If there had been any question as to the defendant having directed Freeman to shoot the gun at either object, the under [360] standing of Freeman would have been equally inadmissible, and Tor the reasons above stated. [Monroe General Term, September 4, 1854. The justice having allowed the objectionable inquiries, against the objection of the defendant, and as the evidence given in answer to them was calculated to, and probably did, have an influence in producing his decision, I think the county court properly reversed the judgment of the justice, and that the judgment of the county court should be affirmed. Judgment affirmed. Johnson, Welles and T. R. Strong, Justices.]