Diener v. Schley

By the Court, Whitoet, O. J. The bill in this case was ined for the purpose of compelling Frederick Diener, jr., one of the defendants, to execute a release to the complainant of certain lands described in the bill. The bill charges that the complainant purchased a quantity of land of one John Martin, and took a conveyance of the same to himself and his son Carl Diener jointly; that his other son, Frederick Diener, jr., sets up a claim to one-half of the land, [525] claiming to be one of tbe grantees named in tbe conveyance of tbe land from Martin. Tbe bill prays that -Frederick, jr., may be decreed to release to tbe complainant all bis right to tbe land, and for general relief. Tbe answer of Frederick, jr., claims that tbe purchase of the land was made by Frederick, sr., for bis sons Carl and Frederick, jr., and that they are tbe grantees named in tbe deed. Tbe answers of tbe other defendants need not be noticed. It will be seen that tbe principal question is, whether tbe real grantee named in tbe deed from Martin, with Carl, was Frederick tbe father or tbe son. To determine this question a feigned issue was awarded, and-a jury called, who, after bearing the testimony, found that tbe title was in Frederick, sr., tbe complainant. A motion was made to set aside tbe verdict of tbe jury, and to grant a new trial of tbe feigned issue, which was denied by tbe court. From tbe order denying this motion, this appeal is taken. Tbe principal matters relied upon by tbe appellant to reverse this order are, tbe alleged errors of tbe judge before whom tbe issue was tried, in permitting improper testimony, and in tbe instructions which be gave to tbe jury. It appears that Charles Diener was allowed to testify to tbe fact that he bad seen a letter from tbe defendant Frederick Diener, jr., written to bis mother in Germany, and was allowed to state its contents, against tbe objections of tbe defendants. We think this testimony ought not to have been received. Tbe letter itself should have been produced, or proof of its loss given, before testimony to prove its contents could be received. Tbe well established principle that tbe party who seeks to establish a fact, must do so by tbe best evidence which tbe nature of tbe case admits of, prevents tbe reception of secondary evidence of this nature. It appears that tbe judge instructed tbe jury that tbe intention of tbe grantors, as to whether Frederick Diener, tbe elder, or Frederick Diener, the younger, was tbe person named or intended to be named in tbe deed, was not material to tbe inquiry, [526] but that the jury should only inquire as to the intention of-the party making the purchase and paying the consideration. We thinlc this instruction is wrong,-and calculated to mislead the jury. It is true, that when the grantor receives the consideration for the land which he conveys, he is usually indifferent who the grantee is, and is controlled upon that subject by the will of the person with whom he negotiates the sale, and from whom he receives the purchase money. But this may not always be the case. A grantor may refuse to convey the land to A., and at the same time be very willing to convey it to B. In such a case the will of the grantor would be a very material subject of inquiry. In this case the deed is so drawn, that it is sufficient to pass the title to either the father or the son, and did pass the title to the one who was intended bjr the parties. If the grantor was entirely indifferent on the subject, and manifested a willingness to convey the land to the person who should be named by Diener the elder, then the will of the latter ought to control ; and if he intended that the title should pass to himself, we think it did so pass. But the jury should not have been instructed that the intention of the grantor was not a proper subject of inquiry, unless they were of opinion, from the testimony, that he was willing to be controlled by the will of Diener the elder, who paid the purchase money. We do not feel called upon to decide whose intention should control in case of a mutual mistake between the grantor and the person who pays for the land conveyed. If the grantor intended to convey to one, and the person who paid the money intended that the conveyance should go to another, while, as in this case, the deed should be so drawn as to be adequate to convey the title to -either, it may be a matter of doubt to whom the title would.really go; and as this question does not necessarily arise,-we .shall express no opinion upon it. ,. - It was contended at the argument that the testimony showed the grantor to be entirely willing, to convey.the land to whomsoever Diener, the elder, should name,- and that -the instructions of the judge were predicated upon the state of facts established [527] by the testimony. We do not intend to express an opinion upon the testimony. As there must he a new trial, it would he improper to do so, as the expression might tend to mislead the jury- It appears that the judge charged the jury, that an interpreter was not necessarity an agent of the parties, so that what he said might he given in evidence, if the party sought to he charged hy his declarations had no knowledge, of the language in which they were made, unless accompanied by proof, that the interpreter correctly interpreted the language of the party. The above is the substance of the charge of the judge upon the subject, and we think it is correct. There is no doubt that the circumstances may be such as to make the interpreter an agent, so as to bind the parties; but we think he is not necessarily an agent. The mere fact that a person contracts with another, whose language he does not understand, by means of an interpreter, does not constitute the latter an agent, so as to bind him by a false translation of the language of the' parties. It would be most dangerous to hold such to be the law, as such a doctrine would hold out great inducements to persons to commit the grossest fraud upon the unwary and unsuspecting. We see no other errors in the charge of the judge, to the jury in this case, but on account of those above alluded to, and for the reason that parol evidence was allowed to be given of the contents of the letter of Erederick, jr., one of the defendants, the order appealed from must be reversed. Order reversed, with costs.