Stuart v. Patterson

Smith, P. J.: I agree with my brother BARKER in the opinion that it was error to permit the defendant to testify as a witness .in his own behalf that the package of gold coin which he sent by express was addressed to John M. Stuart, individually. Stuart was not living at the time of the trial, and from him the plaintiff derived his title to the land, for the recovery of the possession of which the action was brought. The direct tendency of the testimony was to show a paying or sending of money by the defendant to Stuart. Indeed, unless it had that effect, it was wholly immaterial and irrelevant, and for that reason was improperly received. I have read the opinion of my learned brother Beadley with care, but am unable to concur with him in his views on this question. The argument — 117 — turns on the construction to be given to the word “ personal,” as used in 'section 829 of the Code. Does that term apply only to those communications or transactions in which the parties actually meet face to face ? To so hold would be to exclude from the operation of the section all communications and transactions carried on by means of the mail, the telegraph or other like means. In general, a message intrusted to either of those agencies, when it reaches its destination, would seem to be a personal communication between the sender and the receiver. Every case, however, must be determined by its own circumstances. In the present case, the superscription on the package was something more than a direction to the •express company, it was a communication to the person addressed, ■advising him that the package and its contents were intended for him. It appears that within the package was a letter written by the defendant. The letter was not produced at the trial. Suppose it had been lost or destroyed (as probably was the case), so that ■secondary evidence of its contents was admissible, would it have been ■competent for the defendant to testify to its contents, and to state that it was addressed to Stuart, and that it advised him that the money in the package was sent to him in payment for the land in suit ? If not, how does the case supposed differ in principle from the one in hand ? A person writes a letter and hands it directly to the person addressed. The letter being lost, is the writer a competent witness to give parol evidence of its contents in ■a ease within section 829 in all other respects ? I suppose even those who adhere to the literal rendering of the word “ personal ” would admit that it would apply to the case last supposed ; but what reason is there for a different interpretation in a case where the writer sends the letter to the person addressed, by the mail or any other mere carrier. Does the fact that- the parties do not meet make a difference ? One man converses with another by telephone. The parties do not meet; they may be miles apart; yet is either of them competent to testify to the conversation in his own behalf against the legal representatives of the other being dead ? The vice of the ruling, as it appears to me, is that it permitted the witness to state a fact which, taken in connection with proof that the package reached its destination, raised the presumption that the money contained in it was paid by the witness to Stuart, indi — 118 — vidually, and not to the firm of which lie was a member. So that if Stuart bad been living it would have been competent for him,, and be would bave been required, for bis own protection, to testify to any fact within bis knowledge that tended to repel such presumption, as, for instance, that the package was not delivered to him, or that it was addressed to the firm and not to himself. It is sometimes difficult to draw the line in construing the statute-referred to. I am not aware that the present case has its parallel in the books. But our Court of Appeals has characterized the statute as “ a beneficial one ” which “ ought not to be limited or narrowed by construction” (Holcomb v. Holcomb, 95 N. Y., 316, 325); and the same court has said that the spirit and purpose of the statute “is equality, to prevent undue advantage, and that purpose should be kept in view when border questions arise and lines of distinction are to be drawn.” (Wadsworth v. Heermans, 85 N. Y., 639, 640.) Each of those injunctions seems to lead to the construction above indicated in the present case. Pease v. Barnett (30 Hun, 525) was an action on a bond. The defense was that the bond had been altered after its execution by the insertion of a clause binding the separate estate of the defendant’s testatrix, a married woman. The case having come before this court on appeal, we held that it was not competent for the plaintiff, the obligor, although not present when the bond was signed, to testify as a witness in his own behalf that he saw the bond in the hands of his attorney after it was drawn and shortly 'before it was executed, and that it then contained the clause in question. ¥e were of the opinion that although the witness and the deceased did not meet, the execution of the bond was a personal transaction between them, within the meaning of the statute, and that the plaintiff was not at liberty to give testimony in his own behalf tending to show what was the wording of the bond at the time of its execution. In that case, the testimony was merely inferential as to the contents of the bond at the time of execution, since the clause which the witness saw might have been erased before the bond was signed; and the testataix, if living, could not have directly contradicted the plaintiff, but could only have repelled the inference arising from his testimony, by stating that the clause was not in the bond when she signed it. — 119 — Without undertaking to lay down a rule that will be applicable to all cases, I think it may be safely said that, in general, where the testimony of the surviving party will tend directly or by proper inference to prove a communication made, or a transaction had, between the witness and the deceased under such circumstances as that it can be seen that the deceased, if living, might give testimony directly contradicting that of the witness, or tending to repel the inference to be drawn therefrom, the testimony is inadmissible, provided the ease in all other respects is within the statute. The present case is within that rule. The testimony thus improperly received touched a vital point in the controversy, and I am not able to say that it had not its legitimate effect in the decision of the case. For these reasons I vote for a new trial. BARKER, J.: I am also of the opinion that the judgment should be reversed for the reason that incompetent evidence was received on the trial bearing on the material questions in issue. The defendant did not produce any written evidence in the nature of a contract showing that he was the purchaser of the -property from Mr. Stuart, or that he had paid him the purchase-price on the parol contract, which he now alleges existed between himself and Mr. Stuart. To maintain his equitable defense the defendant relied upon certain facts and circumstances proved by him, and from which the referee held that it was a fair and reasonable deduction that Stuart held the title in trust for the defendant, and that he had fully redeemed the same from such trust in the lifetime of Mr. Stuart. While this may be a just and proper conclusion to be drawn from the history of the case, all of us agree, if any incompetent evidence was given on the trial over the plaintiff’s objection and exception, it is good ground for reversing the judgment. Permitting the defendant to prove by his own evidence the conversation between himself and Mrs. Stuart in 1865, being after Mr. 'Stuart had conveyed the land in trust for the benefit of Mrs. Stuart and others, was obviously erroneous. The interview with Mrs. Stuart was sought by the defendant, and his statements made to her relative to — 120 — the property were mere declarations in bis own favor, and were in effect assertions that he had paid Mr. Stuart for the farm and that he held the title in trust for him, and Stuart had never paid anything toward the land. These declarations were not made to one interested in the fee of the land, nor was the defendant provoked to make the same by the assertions or conduct of the trustee, but were in fact voluntary utterances made by an interested party in his own behalf. Mrs. Stuart, as one of the beneficiaries under the trust-deed, could not make an admission which would bind the trustee. As she could not impair the legal estate by grant, it would seem to follow as a legal proposition, admitting of no dispute, that her verbal admission should not be received to support an equitable title in another, which, when enforced, would destroy the title under which the trustee holds. (Pope v. Devereux, 5 Gray, 409.) When the plaintiff interposed his objection to this evidence, the referee remarked that he would overrule the same as to Mrs. Stuart, as she was not the party to the record, and no objection was, or could be, made in her behalf, the meaning of the referee’s statement is not readily comprehended. The objection was made by the plaintiff on the ground that the defendant Patterson proposed to prove the conversation with Mrs. Stuart in support of his affirmative defense, and the record shows tüat it was received for that purpose. Therein lies the error. In my judgment it was error to permit Patterson, as a witness, to testify that the gold sent by express was consigned to Mr. Stuart individually, and not to the house of Freeland, Hoffman & Co., as such evidence related to a transaction between himself and Mr. Stuart. At the time the gold was sent, Patterson was indebted to Stuart for the land, as was admitted on the trial, and he was also then indebted to the house of Freeland, Hoffman & Co., of' which Stuart was a member, in a sum greater than the value of the gold. When this proof was offered the defendant Patterson had given evidence from which it might well have been held that the gold was in fact sent by him to the firm to be applied on his indebtedness to them, and that they had received it and sent him vouchers therefor, one of them being in the form of their own note, payable to his order. This was the situation of the case when the defendant — 121 — was permitted to testify that the address placed by him on the package of gold was to Stuart individually, and not to the firm. This evidence related to a transaction between the witness and Stuart, and must have been received and acted upon by the referee for the purpose of determining the disputed question as to the person to whom the gold was shipped. It was direct evidence in its character that it was not paid to the firm, and it was also equally positive evidence that it was paid over to Stuart individually on the land contract. "What is this, in the name of common sense, but a transaction between Patterson alive and Stuart dead, relative to the subject matter of the suit? If Stuart were alive he could speak on the same subject, and might dispute'the defendant’s version of the transaction. Both Patterson and Stuart were actors in that transaction, if in truth it be as Patterson now claims and testifies it was in fact. But it is said the address served as mere instructions by Patterson, the shipper, to the carrier of the package, and was intended for no other purpose. If this view be-taken of the purpose and object of the address, and it is to be regarded as nothing more, then why was the fact proved ? This argument demonstrates that the evidence was immaterial, and for that reason it was erroneous to receive it. When it was established by the other evidence in the case that Stuart did receive the package at the counting-house of the firm, and there opened the same, it was still left uncertain in what •capacity he received it, whether for the firm to apply on their .account against Patterson, or for himself individually, to be applied upon the land contract. It was for the purpose of enabling the referee to dispose of this contention that the evidence was received. It related to and characterized Stuart’s act in receiving and opening the package, as it tended to prove that Patterson paid the gold to Stuart on the land contract, not by proving an act done by the carrier or some other person, but by proving a transaction in which they were both necessarily actors. The address, in view of the use now sought to be made by it, was in the nature of instructions on +he part of the consignor to the consignee, which might with propriety be written on the package as well as sent separately by letter, •as is customary in such transactions between merchants. So far as the address served as instructions to the carrier, it long ago served — 122 — its purpose, and on tbis trial the form of the address was proved and received as competent evidence on an altogether different issue and between different parties. In my opinion the defendant Patterson was disqualified as a witness, by section 829, to prove the fact for which he contends, as Stuart is now dead and the plaintiff claims title under him. The case of Koehler v. Adler (91 N. Y., 657), is similar in its material facts to the case now here, and is an authority, I think, in support of the views I have expressed. (See, also, Price v. Price, 33 Hun, 73.) “ The words of exclusion are as comprehensive as- language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation,, interviews or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition or language of another.” (Holcomb v. Holcomb, 95 N. Y., 316.)