Lewis v. Havens

Park, J. It was a material question in this case whether the defendant took actual possession or not of the rooms which the plaintiff blaimed to have leased to her. The plaintiff claimed, and offered evidence tending to prove, that she occupied the rooms through one Mrs. Husted, who cleaned them some time in the afternoon of the day they were claimed to be rented to the defendant. The defendant insisted that she made no arrangement with Mrs. Husted to clean the rooms, but that one Mrs. Light engaged her to do the work, and paid her for the same ; and offered herself and Mrs. Light as witnesses to prove these facts. The ¡slaintiff objected to the testimony, on the ground that what transpired between the parties took place in his absence, and consisted of declarations made in the interest of the defendant. Mrs. Husted cleaned the rooms. t For whom did she clean them ? Who engaged her to do the work ? The answer to these questions must depend upon what transpired between her and her employer, and could be proved only by showing what was said between them, like the evidence of any other parol contract. What transpired did not concern the plaintiff. He had no interest in the matter. His presence or absence was of no importance. If he had been present he would have been an idle spectator, and the facts would have remained the same. Employment, and refusal to employ, are facts to be proved like any other facts. As well might the plaintiff claim that there should be no evidence that A committed an assault and battery on B at a certain time, unless he was present, if such fact was important in a case to‘which he was a party, as to claim that no evidence would be admissible that Mrs. Light made a contract with Mrs. Husted to clean the rooms in question when he was not [369] present at the malting of the contract. "We think the evidence was clearly admissible, not on the ground of res gestee, but as evidence of what transpired, like the evidence of any important fact. We think the testimony of Mrs. Husted in relation to the same transactions was admissible upon the same ground. She certainly could testify that she cleaned the rooms and who engaged her to do the work. There is one expression in her testimony that was improper to have been made, and if objection had been taken to it specifically it should have been ruled out; and that is, that “ the rooms were not altogether taken.” It is not pretended that she was .present at the conversation between the plaintiff and defendant in relation to the renting of the rooms, and therefore she had no personal knowledge on the subject. But the objection was taken to the whole evidence, and was placed upon the same ground as that made to the evidence we have considered. Under such circumstances the court was not bound to discriminate. If any of her evidence was proper to be received no objection can now be made that some of it was improper. The plaintiff offered in evidence what purported to be a telegram found in the office of the Franklin Telegraph Company of Bridgeport, among the files of the telegrams sent by the company on the 2d day of October, 1871, in which the defendant is said to have admitted that she had rented rooms on Main street in Bridgeport, and had determined to remain there. The paper was written in pencil, and was directed to the brother of the defendant at Hartford in this state, and was dated on the last mentioned day. The defendant admitted, (on inquiry being made of her by the plaintiff,) that on that day she sent a telegram to her brother at Hartford written in ink, stating that “ if she could find rooms in Bridgeport she should remain there.” She further stated, in answer to further inquiries by the plaintiff, that the telegram presented was not in her hand-writing; that she sent but one telegram that day, and that that one was written by herself. On these facts the plaintiff insisted that the telegram was, admissible in evidence, but the court rejected it. [370] It will be perceived that all the evidence tending to connect the defendant with the telegram in question, arose from the facts that she sent through some office a telegram on that day, that she sent but one, and that one was found. If the evidence of the plaintiff had stopped here, perhaps it would have been sufficient to go to the jury for them to determine whether the telegram presented was the one sent by the defendant. But the plaintiff himself proved, in addition thereto, that the material used in writing the telegram sent by the defendant, the language of the message, and the handwriting, were wholly different from those of the telegram presented. It is true that the evidence of these facts came from the defendant on inquiries put to her by the plaintiff. But the plaintiff made her his witness in relation to them, and they conclusively show, if true, that the telegram presented was not the one sent by the defendant. We think the court committed no error in rejecting the evidence. The plaintiff further claims that the court erred in refusing to adjourn the cause to enable him to procure further evidence in relation to the telegram. But this complaint is based upon a matter of discretion, which is never the subject of review by this court. Complaint is likewise made of the charge of the court to the jury; but it is unnecessary to notice the claims made upon this subject. We-think it is clear that none of them are tenable. A new trial is not advised. In this opinion the other judges concurred.