Sanderson v. Osgood

The opinion of the court was delivered by Ross, J. The paper to the admission and use of which before the jury exception was taken by the defendant, before such objection and exception were made or taken, “ had been used as a specimen of the plaintiff’s handwriting, while examining some of the witnesses upon the question of the genuineness of the disputed letters.” No question involving the authenticity of the paper was made or saved. By allowing the paper to be used as a specimen of the plaintiff’s handwriting in the examination of the witnesses in regard to the genuineness of the disputed letters, the defendant practically admitted the paper in evidence, and, under our practice, gave permission to have it go to the jury for the purpose for which he had allowed it to be used. His objection and exception to the ruling of the court allowing it to be used for these purposes, came too late. The principal value of the paper as a piece of comparative evidence arose from the testimony of the expert witnesses when comparing it with the disputed letters. That evidence was all admitted without exception. To enable the jury to appreciate and weigh the testimony on such comparison, it was necessary that they should have the very papers to examine and compare which the witnesses had been allowed to use, speak of, and compare in giving their testimony. If the defendant would have saved his right to have the paper kept out of the case, he [312] should have objected and excepted to its use and admission at all. The purpose for which it was admitted against his objection was not a different purpose from that for which it had already been used, but simply carried the purpose for which the defendant had allowed it to be used through to completion. If the court had admitted it, and allowed it to be used against exception for another and different purpose than that for which it had been already used without objection, and the latter use had been illegal and prejudicial to the defendant, his exception would have been well taken. If the defendant’s exception had been taken when the paper was first put into and used in the case by the plaintiff, and the court had admitted it, the exception would have availed him. As we understand the rule, the claimed author of disputed writings cannot make testimony in his favor by bringing in for comparison a writing manufactured by him for that very purpose after the controversy has arisen. He is confined to the production of papers written by him before the controversy commenced, or those subsequently made by him in the usual course of business and under such circumstances as to negative all idea that they were made for the purpose of being used as evidence in his own favor. A party cannot be allowed to manufacture this class of testimony more than any other in his favor. The utmost limit to which the cases and practice go in this respect, is to allow the opposing party, when the upholding party takes the stand as a witness, in cross-examination to call upon him to write in the presence of the jury, that he may use such specimens of his writing for comparison with the disputed writing by the jury and experts against him. Although not strictly necessary for the decision of this case, we feel called upon to define what we deem to be the true rule in regard to the admission of this class of testimony, that the practice allowed in this case without seasonable objection and exception may not become current, nor be thought to have the approbation of this court. Judgment affirmed.