Wyckoff v. Carr

Martin Cn. J.: We think the Circuit Judge erred in sustaining the objections made to the questions propounded to Pringle, as to the statements of Pool to Mm, touching the schedule. Although the assignment may then have been so far completed as to render it a valid conveyance of Pool’s property, m the absence of fraud, (which is a question not submitted to us) yet these statements, whatever they were, appear to have been made before the schedule was made out and attached, and while Pool was making it. He still had the ostensible custody of the property, but whether under Carr’s employment, or in his own right, was a question to be determined on the trial. The transaction was claimed to be fraudulent, and the defendant below was attempting to prove [47] it to be such. Pringle represented some of the creditors of Pool, and interrogated liim respecting the schedule. Situated as Pool was in relation to the assignment, the property and the assignee, and the object of the inquiry being to ascertain the real nature of the transaction, his answers were competent evidence, and should have been admitted. They would not be the statements of an indifferent party, nor would the evidence be hearsay; but the statements of an actor pending the transaction, made before its full completion. In cases where fraud is the subject of investigation, the statements of the parties charged with it are, and must of necessity be, permissible in evidence if made before the instrument charged to be fraudulent is completed, or while it is being made. Othenvise in the great majority of cases fraud as a fact could never be shown. It would not only be an unsafe but an unjust rule, which should confine a party attaching an instrument upon such ground, to the testimony of the party charged with the fraud. It is claimed that these statements, so long as the assignment had been made, were not a part of the res gestee, and consequently the evidence of Pringle would be hearsay — Pool being the only competent witness, by whom to prove the facts squght to be established. As an actor, his statements may be-proven by any one who heard them, as well as by himself, even although his statements were not strictly res gestae, not being facts in the transaction, nor made by him while in the act of making the schedule, although made during the period which elapsed between its commencement and completion. Much difficulty exists at times in determining Avhat declarations are res gestee, but there is none in holding that the declarations of a party in interest, although at the time he is taking measures to divest himself of his interest, or that those of an actor, before -the transaction is completed, are admissible evidence, on the ground of such interest, or relation to the transaction. For this error, we think the judgment should be reversed, and a new trial granted. [48] The third and fourth assignments of error are determined by the cases of Oliver v. Eaton, and Bagg v. Jerome, in 7th Michigan Reports. The other Justices concurred. Judgment reversed.