Holbrook, Carter & Co. v. Murray

The opinion of the court was delivered by Davis, J. It is not important to inquire, whether the declara» tions made by Orrin Murray to persons in his employment upon the farm, and others, while he was in the occupation thereof, to the effect, that he was merely acting as the servant of Riford, without any title or interest in himself, were properly admitted; since the main controversy, involving the validity of the notes and mortgage from Robert Murray to Riford, has been determined, so far as the trial below is concerned, in favor of the defendants-. The declarations in question contributed nothing to that result, which, if not attained by means otherwise objectionable, will serve as an ample protection to Orrin, as well as the other defendant, whatever may have been the character of his possession. [528] The admission of the sayings of Orrin Murray to Holman, the day previous to the date of the mortgage, that he then had the Ri-ford notes in his possession and must secure them, and that Holman advised, that he should seek security on the Brookfield property, the property in question, and not upon the property at Northfield, owned by Murray & Scott, upon which latter property, it seems, Hqlman was desirous to secure some debts he had against the firm, raises a different question; inasmuch as the actual existence of the notes, anterior to the date of the mortgage, became material and pertinent in determining the issue between the parties. As these sayings come from one of the defendants, and relate to a point admitted to be material, it is obvious, that they were not admissible, unless they constituted a part of the res gestee, and were introduced to qualify and explain some leading fact in the case, with which that defendant was connected, and were contemporaneous with such fact, and were made ante litem motam. Tried by these tests, we think they were inadmissible. Orrin Murray, at the time of this conversation, was not engaged in any act, or transaction, respecting the notes, — not so much, even, as exhibiting them to view. It is true, that on the next day the mortgage on the Brookfield property was obtained, through his agency, in accordance with the advice of Holman. Declarations, made while in the execution of that business, in explanation of the purpose, and illustrative of attending circumstances, and before the attachment upon the same property was made by the plaintiffs, which gives rise to this controversy, would have presented a different question, and would doubtless have been admissible. The notes bear date some time previous to the date of the mortgage, and there was other evidence, tending to show that they were not only executed at the time they bear date, but that they were given for money actually loaned by Riford to Robert Murray, and that, on the former being about to go on a journey to the west, he placed them in the hands of Orrin Murray, with directions to get security on them, in case of any trouble. This evidence, without the aid of the hearsay testimony in question, may, or may not, have been sufficient to have induced the result which followed. We cannot assume, that it would, for the purpose of showing that the objectionable testimony was of no prejudice to the plaintiffs. Enos v. [529] Tuttle, 3 Conn. 250. Milford v. Bellingham, 16 Mass. 108. Boyden v. Moore, 11 Pick. 362. Ross v. Bank of Burlington, 1 Aik. 43. 2 Cow. & H. Notes to Phil. Ev. 589. Sessions v. Little, 9 N. H. 271. Doorman v. Jenkins, 2 Ad. & E. 256. 1 Greenl. Ev., § 108. Thorndike v. Boston, 1 Met. 242. 2 Shep. 141. We have not found it necessary to consider the questions in relation to the refusal of the court to give the instructions required by the plaintiffs’ counsel. The judgment of the county court is reversed, and a new trial granted.