Abel v. Fitch

Ellsworth, J. We think the paper signed by J. O. Hopkins, offered in evidence by the defendant, is clearly inadmissible. It is nothing more than the opinion of a deceased man, given three years after this dam was built, as to what was its height when built, he then being miller. And further, this opinion is drawn from Hopkins, by the defendant, some two years after the dispute commenced. The submission speaks of the dispute as existing in 1834, and the writing of Hopkins is dated January, 1836. Doubtless, entries and admissions of deceased people are, in some cases, admissible. But the evidence now offered, does not belong to that class. Entries by persons since deceased, having full and peculiar means of knowledge, made at the time, in the regular course of business, in the usual and proper place and manner, especially, if in the discharge of one’s duty, are admissible to the jury, as a part of the res gesta. So admissions of a deceased man, made against his interest, or by an agent, constituting or qualifying the trans [97] action enquired after, may go to the jury ; but the opinion of Hopkins has none of these qualities, nor is it accompanied with any of the safeguards of such evidence. It does not differ from the opinion or remark of any other person, deceased, w ho was acquainted with the subject matter in controversy. We think the court did right in admitting the testimony of S. Abel and N, Huntington. The question was, whether the submission or paper signed by the parties submitting their differences to these arbitrators, was in its original form, or had been altered; and particularly, whether the words " boards to the height of ten inches," which appeared to be interlined, had not been added since the submssion and award. To prove that they had, the plaintiffs introduced the arbitrators, who testified, they had no knowledge or recollection that this interlineation was in the submission when they acted as arbitrators ;-tbat according to their recollection and belief, there was no question before them about an injury from flash boards; nor did they hear any thing about them from the parties, but arbitrated only upon the effects of the permanent dam. This testimony conduced to prove the fact for which it was offered. Nor is there any force in the claim that this submission and award, if unaltered, constitute an estoppel upon the plaintiffs, or either of them, as to the height of the old dam. The claim made, is, that Elijah Abel and Elijah H. Abel, in that arbitration, submitted no claim for damages done, otherwise than by the "flash hoards," and therefore, the dam itself had not been raised too high in 1833, and the plaintiffs were estopped claiming it had been. A strange estoppel indeed, if the only question submitted was, the amount of injury done by " flash boards !" The award has not a single requisite of a legal estoppel. The jury were permitted to draw such inferences as they pleased from the omission, if there was any; but that did not make the proceeding an estoppel. At most, the height of the permanent dam was passed by, and not made the subject of award. The plaintiffs might not then have supposed the permanent dam had been raised ; or [98] the parties might have agreed as to so much, and that matter might have been designedly omitted. We do not advise a new trial. In this opinion the other Judges concurred. New trial not to he granted.