Hersey v. Barton

The opinion of the court was delivered by Kellogg, J. The only question raised in this case is upon the ruling of the county court, admitting the deposition of one Taber, which was introduced by the plaintiff and admitted by the court under objections by the defendant. The deposition purports to recite a conversation between the plaintiff and the witness, in relation to the subject matter of the controversy between the parties to this suit, in the presence of the defendant, which the witness cannot say the defendant heard, though he gives it as his opinion, that he did hear it. We think, the testimony was inadmissible. Testimony of this character, when received, is for the purpose of raising a presumption, from the silence of the opposite party, of the truth of the statements. It is a class of testimony, which, under some circumstances, is clearly admissible, but it is always to be received with caution. To justify a presumption of an admission from the silence of the party, when a statement is made in his presence, adverse to his interest, the statement must not only be brought to his attention, but it must be such as .calls for a reply. Such is the doctrine held in Gale v. Lincoln et al., 11 Vt. 152. That was an action upon a warranty of some sheep: and to prove the warranty, evidence was given, that, while the plaintiff and one of the defendants were selecting the sheep, the plaintiff, in conversation with his son, in the presence of one of the defendants, told his son, that he was to pay $2,25 each, for the sheep, and that they were warranted sound, and that the defendant did not dissent from [688] the statement, or make any reply to the same. It was held to have no tendency to prove the warranty, and was therefore inadmissible. And the court put the decision upon the ground, that the statement was not made to the defendant, but to a third person, and that it did not call for a reply. So in the present case, the remark of the plaintifij that he had not swapped horses, but exchanged on trial, though made in the presence of the defendant, was not addressed to him, but to the witness Taber, and it did not require an answer. This we think to be the correct rule, by which to determine the admissibility of testimony of this character. To hold that a person is bound, upon all occasions, when his adversary, in his presence, is making statements to others and not addressed to him, but which are adverse to his interest, to repudiate the same, or that his silence should be taken as an admission of the truth of those statements, would in our judgment be unsound in principle and unwarranted by authority. It is at best a species of evidence of doubtful character, which ought not to be extended. We think it is quite enough to avoid the effect of such statements, to require a repudiation or contradiction of the same, when they are addressed to the individual, or are made in such terms and under such circumstances, as demand a reply, neither of which, as we think, existed iij the present case. Viewing the testimony of Taber as improperly admitted, the judgment of the county court must be reversed.