Barber's Admr. v. Bennett

The opinion of the court was delivered by Ross, J. In 1868 the intestate paid to D. J. Barber, the treasurer of the Rlunket & Barber Manufacturing Company, to be placed by the company to the credit of the defendant, the sum of $200. The treasurer credited this sum in two items, one of $175 and the other of $25. In the margin, against the first-named sum, the treasurer had minuted “E. B.,” and against the $25, “ self.” Against the exception of the defendant, D. J. Barber, a witness for the plaintiff, was allowed to tes [57] tify, as a part of the res gestos, that the intestate told him, when he paid this money and directed its application to the credit of the •defendant, that he furnished from his own resources the $175, and the defendant the $25, and that was the meaning of the words entered by him in the margin. As this declaration of the intestate, so far as it relates to the $25, was against his interest and in favor of the defendant, the defendant had tire right to have it put in evidence in his favor, and has suffered no wrong or harm, when it was put in by the plaintiff against his exception. This testimony, so far as it relates to the $175, bore directly in favor of the plaintiff’s claim, that the estate was entitled to recover this item from the defendant, because it had been paid by the intestate from his own money, and against 111 e claim ■of the defendant, that the intestate paid this $175 with money furnished by the defendant. It is to be observed that the res gestas, or thing being done, was the payment of money by the intestate to the company, to be applied to the credit of the defendant. From the nature of the transaction, the intestate was making the payment as the agent- of the defendant. Says Mr. Greenleaf, in his work on evidence, Vol. I., s. 114, “The rule admitting the declarations of the agent is founded upon the legal identity of the agent and the principal; and, therefore, they bind only so far as there is authority to make them. Where this authority is derived by implication from authority to do a •certain act, the declarations of the agent, to be admissible, must be a part of the res gestos,” and in note 2, “ By being a part of the res gestee is meant that such declarations are evidence only where they relate to the identical contract that is the matter in controversy.” Perhaps this last sentence would more accurately state the law of the subject if, instead of the words “contract” and “controversy,” the words “business” and “transaction” were substituted. The business which the intestate was transacting as the agent of the defendant was the payment of money to the company, to the credit of the defendant. As held when this case was before the court, as found in the 58th Vt. 476: “ It was allowable as a part of the res gestee to show the purpose [58] for which the money was paid, by the direction or declaration of the party paying it.” The intestate’s declarations to this extent are clearly a part of the business which he was transacting for the defendant, and admissible under the rule, as stated from Greenleaf on Evidence. As then reported, the exceptions do not distinctly raise the question now before this court, and the court expressed no opinion upon it. The exceptions in that case state quite fully what was shown in regard to the $25, but very meagerly what was allowed to be shown in regard to the $175. Hence that decision does not conclude this question. From • what has been said it is very evident that whether the intestate or the defendant furnished the $175 was no part of the business being transacted by the intestate as the express or implied agent of the defendant, when paying that sum to the Plunket & Barber Manufacturing Company, and directing its application to the credit of the defendant. The declaration of the intestate that he furnished that sum to the defendant related, not to the business which he was transacting with the company as the agent of the defendant, but to another and distinct transaction between the intestate and the defendant. It is open to the full force of the objection to hearsay testimony. It was a declaration by the intestate wholly in his own favor, and related solely to a transaction between himself and the defendant. Godding v. Orcutt, 44 Vt. 54. Neither the declaration of the intestate that he furnished this sum of money, nor the witness’ memorandum, written on the margin of the entry, which refreshed his recollection of what the intestate said in regard to his furnishing the defendant this sum, was admissible. It is well settled in this State that a witness may be allowed to refresh his' recollection of what transpired by memoranda? made in writing at the time or soon after, and that such memoranda may, if otherwise unobjectionable, be allowed to go to the jury for examination, inspection and consideration, not as independent evidence of the facts minuted, but as corroborative of the testimony of the witness. Hence, if the witness could properly testify to the fact in regard to which the marginal entry [59] refreshed his recollection, that entry might properly have gone to the jury. But the witness’ testimony on this point being inadmissible, the entry was also inadmissible. II. The evidence of Mrs. Moon was properly excluded. To be admissible as apart of the res gestee, of the delivery of Moon’s note by the defendant to the intestate, the declaration of the defendant offered to be shown should accompany the act of his delivery of the note. No such delivery was offered to be shown. III. The defendant’s exceptions to the failure' of the court to comply with his requests to charge are not sustained. The exceptions show that his requests numbered 1, 2 and 3 were 'not applicable to the case made by the testimony. Requests numbered 6, 8 and 10 were in substance complied with so far as they contain an accurate statement of the law applicable to the issues made by the pleadings and evidence. No more than a substantial compliance with such requests is required. This disposes of all the exceptions now relied upon by the defendant. The judgment of the County Court is rever sed and the cause remanded. Munson, J., having been counsel, did not sit.