Fitch v. Martin

Pee Cueiam. Each party to this record requested a reversal of the judgment of the district court, and it was not thought necessary to determine etery question presented in their respective briefs. Each party asks for a rehearing to the end that alleged errors in our opinion may be corrected and certain assignments and cross-assignments of error considered. 1. Plaintiff suggests that we determine the admissibility of the testimony of Walker, Clarkson, Bastedo, Haller, Walcott and Judge Estelle concerning certain transactions with Major wherein Fitch was not known. Walker was a real estate broker. Clarkson represented Major as his attorney when the latter was arrested on — 746 — a charge of embezzlement. -Judge Estelle was counsel for the deceased in a lawsuit, and Haller represented the defendant in said action. Bastedo is a builder and contractor, and constructed two houses in Omaha for Major, and also knew about the transfer of stock in the Delphine Mining Company to the deceased. Walcott was associated with said mining company as its attorney, while Major was interested therein, and also appeared for him in a lawsuit. All of said transactions occurred during the time plaintiff: claims that he was employed by the year as Major’s attorney. Plaintiff relies in some degree upon proof of continued professional services for the deceased to establish an annual renewal of the contract he claims to have made years before with Major to serve him professionally for a stipulated sum per annum. The evidence upon the main issue is not conclusive, and competent evidence of collateral facts or circumstances reasonably tending to establish the probability or improbability of the fact in issue, if not too remote, is relevant. Farmers State Bank v. Yenney, 73 Neb. 338; Blomgren v. Anderson, 48 Neb. 240. It is largely Avithin the discretion of the trial court to say what proof of collateral facts is or is not too remote in a particular case. In Stevenson v. Stewart, 11 Pa. St. 307, defendant asserted that his signature had been forged to the bill in suit. The plaintiff was the administrator of the deceased payee. It was held competent for plaintiff, in rebuttal, to prove that about the date of the note defendant had borrowed money from other persons. Mr. Justice Bell reasons that the competency of a collateral fact to be used as the basis of a legitimate argument is not to be determined by the conclusiveness of the inference it may furnish with reference to a litigated fact, but that, if it tends in a slight degree to elucidate the inquiry, or to reasonably assist in a determination probably founded on truth, it should be received. See, also, Gillet, Indirect and Collateral Evidence, sec. 51. It does not require argument to demonstrate that, if Fitch were employed by — 747 — tlie year as Major’s attorney, Major Clarkson, Judge Estelle and Mr. Walcott would not ordinarily, during that period, be attending to Major’s litigation. Of course the inference would not be conclusive; the circumstances would be subject to explanation, and different minds might honestly draw diverse conclusions from the facts stated. We are not inclined to substitute our judgment for that of the trial court in passing upon the relevancy of this collateral evidence. If the case were on trial before us, we would not receive the testimony of Mr. Haller, because it'merely corroborates Judge Estelle upon an admitted fact. The transactions proved by Bastedo did not necessarily involve the services of a lawyer, and the testimony of that witness with propriety might be excluded. So much of Walker’s testimony as did not refer to the examination of abstracts of title for Major, or contradict in some manner plaintiff’s testimony Avith reference to the services he claims to have rendered the deceased Avith reference to specific tracts of land, might, Avith profit, be ex-eluded. Upon the next trial of this case the evidence may assume such a form as to make relevant some of the evidence that now seems irrelevant, but sufficient has been sa'id to guide the trial court in the disposition of this feature of the case. 2. It is urged that the question referred to in the second subdivision of the opinion was not answered by the witness. The opinion does not so state. The trial court did not sustain defendant’s objections to the interrogatory. The question was not Avithdrawn, and the ruling referred to permitted the witness to answer subsequent questions on the assumption that the services testified tq were performed for Major. Questions like the following were thereafter propounded: “You may now answer the original question with reference to lots in Credit Foncier addition,” etc. The interrogatories referred back to the quoted question, and we remain of the opinion that error was committed in the examination of plaintiff. — 748 — It is argued that plaintiff liad been cross-examined upon all of the entries in the memorandum books, which were received in evidence over defendant’s objections. We have been unable to find any cross-examination with reference to the following entry in the 1894 memorandum: “Monday 17. Agreement with Major to reduce contract services to |400 per year to begin Jan. 1, ’95.” To the suggestion that defendant’s counsel should have severed their objections so as to refer only to the entries concerning which plaintiff had not been cross-examined, it is sufficient to say that plaintiff’s offer, although purporting to be several as to each item, was omnibus in character. Opposing counsel would have been compelled to check each item in several books purporting to record as many years’ transactions, if they were to direct their objections specifically to the incompetent or irrelevant evidence included in the offer. The law does not place that burden upon the cross-examiner. It was the duty of plaintiff’s counsel to include within his offer only competent evidence. If he did not, the objection should have been sustained. Hidy v. Murray, 101 Ia. 65; Hamberg v. St. Paul Fire & Marine Ins. Co., 68 Minn. 335. 3. Defendant argues that the evidence does not justify instruction numbered 9, which, in substance, informs the jurors, that, if they find from the evidence that about August 17, 1896, Major indorsed his name on a certain note and delivered it to plaintiff to be applied on the claim in suit, the transaction would toll the statute of limitations. It is shown by the testimony of Karbach that some time preceding July, 1906, he heard a conversation in plaintiff’s office between Fitch and Major concerning said note; that he noticed Major’s name on the back of said instrument, which was thereafter transferred by plaintiff to Karbach’s father for office rent, and later returned to Fitch as worthless. Plaintiff was familiar with Major’s signature, and testified that it was written upon the back of the note. He did not say that he saw Major sign his name thereto, and his testimony was admissible. Minnis — 749 — v. Abrams, 105 Tenn. 662, 80 Am. St. Rep. 913. The note is credited tinder date of August 17, 1896, in Fitch’s /account against Major, and is charged back to the latter December 12, 1900. Mrs. Dunham also testified that she heard Fitch and Major talk about the note, and subsequent to August, 1896, saw the latter looking over Fitch’s book account against him, and that he expressed satisfaction therewith. Counsel refer to facts and circumstances touching the credibility of plaintiff and Mrs. Dun-ham, but that argument is for the jury, and not this court, to consider. The instruction responded to the evidence, and is not erroneous. Instruction numbered 11, with respect to the $50 credit, is correct, unless it is conceded that plaintiff and Mrs. Dunham are not to be believed. The jury, and not this court, should pass upon the credibility of the witnesses. 4. It is urged that the district court should have admitted a transcript of plaintiff’s claim as it appeared in the county court, because by comparison with the petition herein it will be found that items are included in the petition that were not brought to the county court’s attention. Reliance is placed on Paxton v. State, 60 Neb. 763, to support this assignment. In the cited case a suit had been instituted in Douglas county upon a bond of a former state treasurer and in Lancaster county a like suit was commenced upon another bond given by that official. The statements in the petition filed in Lancaster county amounted to an admission that part of the claim made in the Douglas county suit was unfounded, and hence it was held that the defendants in the last named case should have been permitted during the trial to introduce in evidence a certified copy of the petition filed in Lancaster county. Although there is an allegation in the petition in the instant case that the services plaintiff alleges he performed for Major were worth more than the sums charged therefor, the action did not proceed as one upon a quantum meruit, nor to recover separately for each item of said services, but to recover a judgment for services — 750 — alleged to have been performed during several years upon an employment to pay Fitcli therefor by the year. Proof of services rendered was admitted to prove that something was actually done by plaintiff for Major, and for the purpose of raising the presumption that such employment continued according to alleged preceding arrangements between the parties for payment by the year for professional services. In view of the issues actually presented, there ivas but little probative value in the facts referred to, and the exclusion thereof was not, and their admission would not have been, prejudicial error to either party. 5. Defendant argues with much earnestness that we should determine whether the court erred in excluding the deposition of Ross, the chemist. It was shown by the witness’s preliminary examination that he had taken a course in chemistry in the university of Pennsylvania, and had associated with, and worked under, a consulting chemist residing in Chicago, who gave his attention to legal and manufacturing interests. Ross had also studied, and had practical experience, with reference to determining from tests the age of handwriting, and whether, or not dissimilar inks had been used in tracing different writings. It was shown that the witness had subjected entries on each page of the Major account in plaintiff’s book to chemical tests, and had applied the same reagent to entries in corresponding years in the accounts in the same book against other people. The court refused to permit the witness to testify that in his opinion the entries for the various years in the Major account were all made with the same ink and at or about the same time, and that in some instances for corresponding years the entries in the other accounts in the same book were made with different ink. Defendant argues that the Major account was all prepared at the same time for the purpose of furnishing false evidence to bolster up plaintiff’s claim, and that the testimony of Ross tends strongly to establish that fact. It is stated by some writers that chemical tests fur- . — 751 — nish infallible evidence of the identity or dissimilarity of inks employed in tracing different writings. Ames, Forgery, p. 270. Proof of this collateral fact, as compared with the further one that the entries in other accounts Avere made with different colored ink, in the discretion of the court, was proper to go to the jury; but, if in the court’s opinion the eA’idence Avas too remote, or the proper foundation as to the skill of the witness, or the conditions surrounding the test, had not been shown, it Avas not error to exclude it. We are of opinion that sufficient foundation was not proved to admit the Avitness’s opinion as to the age of the entries considered. The witness’s cross-examination was before the court when it ruled on the offers made, and it was advised therefrom that a heavy stroke Avould fade sooner than a lighter one; that an entry made with a corroded pen Avould differ from one inscribed with a bright instrument; writings exposed to the light would fade much more rapidly than those contained in a closed book; and that the Avitness could -not arrive at a satisfactory and an accurate ■ conclusion unless he had knowledge of all of the facts tending to preserve or deteriorate the writings. None of the aforesaid facts were shown. Mr. Ames, in his Avork on Forgery, pp. 265, 267, states that it is impossible to determine Avith accuracy .the age of writings by chemical tests. That one may determine approximately, “but to tell by the ink which of two writings is the older, Avhen one is but two months and the other two years, is, as a rule, impossible.” Counsel for defendant request us to determine assignments numbered 132, 133 and 134 in their petition in error. They relate to the testimony of plaintiff identifying his collection register and the entries therein. It became material during the trial to establish the dates upon Avhich plaintiff received money on a judgment recovered by Larimore against Mickel Brothers. Plaintiff was attorney for Larimore, and the evidence developed a claim that Major was surety for’costs and owned the judgment in that case, The collection register exhibits — 752 — a history of said litigation and the dates that payments were made on the judgment. All of the entries in said register, save and except those referring to Major, could be lawfully identified by plaintiff, and, if relevant, be received in evidence. Labaree v. Klosterman, 33 Neb. 150. The record gives some countenance to the thought that counsel construe the opinion filed in this case in 74 Neb. 538, to hold that an interested witness in his suit against the representative of a deceased person may testify to facts we held he was incompetent to testify to in Martin v. Scott, 12 Neb. 42. No such construction should be placed on Judge Letton’s opinion. We still adhere to the principles of law stated in Martin v. Scott, supra. Having disposed of those assignments counsel insist should be determined, the motions for a rehearing are Overruled.