Aiken v. Kennison

The opinion of the court was delivered by Eowell, J. Phelps, Dodge & Co. v. Conant & Co., 30 Vt. 277, is sufficient authority against the first exception; but as “ frequent recurrence to fundamental principles” is as necessary in law as in liberty, we will advert to the general rule under which such evidence is excluded. The maxim that a transaction between two persons ought not to operate to the disadvantage of a third, though somewhat obscure in its application, because it does not show how unconnected transactions should be supposed to be relevant to each other, and though failing in its literal sense, because it is not true that a man cannot be affected by a transaction to which he is not a party, is nevertheless one of the most important and most practically useful maxims of the law of evidence. It means, as Mr. Justice Stephen says, that you are not to di’aw inferences from one transaction to another that is not specifically connected with it merely because the two resemble each other; that they must be linked together by the chain of cause and effect in some assignable way before you can draw your inference. Steph. Dig. Ev. 198, note vi. But this rule has its exceptions, and one of them is — which [668] is claimed to be applicable here — that where the question is whether a thing was done or not, the existence of any course of office or business according to which it naturally would or would not have been done, is a relevant fact. But as here was no offer to show any such course of office or business, the case is not brought within this exception; and as there is no other exception to the rule within which it is brought, it is left to stand on the rule itself, which, as we have seen, excludes similar but unconnected facts. 1 Whart. Ev. s. 29. Mr. Phillips says it is considered in general that no reasonable presumption can be drawn as to the making or the execution of a contract by a party with one person in consequence of the mode in which he has made or executed similar contracts with other persons. 1 Phil. Ev. *748. A reference to a few cases will serve to illustrate the rule. In assumpsit for use and occupation, the question being whether the rent was payable quarterly or half-yearly, Lord Kenyon would not allow the plaintiff to show that his other tenants like the defendant paid their rents quarterly, and said that it had been solemnly determined in a trial at the bar that evidence of the custom of one manor was no evidence of the custom of an adjoining manor. Carter v. Pryke, Peake, 95. So where the question was upon the custom of tithing in the parish of A, evidence that such a custom existed in adjoining parishes was excluded, the custom not being laid as a general custom of the whole country. Furneaux v. Hutchins, Cowp. 807. And see Spenceley v. DeWillott, 7 East, 108. The question being as to the quality of beer to be furnished by plaintiff to defendant, evidence was not allowed as to the quality of beer supplied by plaintiff to other persons, there being no offer to show that it was of the same brewing as that supplied to defendant. Holcombe v. Hewson, 2 Camp. 391. So in assumpsit by a school teacher to recover a quarter’s [669] salary for taking away defendant’s children without giving a quarter’s notice, evidence was not allowed to show that another person had taken away her children without notice and without being called upon to pay the quarter’s salary. Delamotte v. Lane, 9 C. & P. 261. And see 2 Whart. Ev. s. 1287, n. 6. The bill of sale from Miller to the defendant was properly admitted. All facts and circumstances upon which any reasonable inference or presumption can be founded as to the truth or falsity of the issue or of a disputed fact, are admissible in evidence. Richardson v. Turnpike Company, 6 Vt. 496. Here it was in dispute whether the plaintiff or the defendant owned the Miller horse. The plaintiff claimed that the defendant was to buy it, and did buy it, as his, to become defendant’s when he paid for it; while the defendant claimed that he was to buy it, and did buy it, as his own and not as plaintiff’s, and that plaintiff never had any interest in it nor lien upon it. Now in this posture of the case it is obvious that the defendant’s taking a bill of sale of the horse to himself when he bought it, had a legitimate tendency to strengthen the probability of the truth of his claim in this behalf, and so was admissible. Again, inasmuch as the defendant was to negotiate the purchase with Miller, such purchase became one of the group of facts that constituted the transaction between the plaintiff and the defendant, and so the case is brought within the rule that every fact that is part of the same transact tion as the .facts in issue or dispute, is relevant, although it may not be itself in issue or dispute, and would be excluded as hearsay or as res inter alios if not a part of such transaction. Steph. Dig. Ev. 29. Judgment affirmed.