Israel v. Redding

Mr. Chief Justice Walker delivered the opinion of the Court: This was an action of assumpsit brought by Peter C. Red-ding, in the Woodford Circuit Court, against Asa B. Israel. The venue was afterward changed to Marshall county, where a trial was held at the January Term, 1866, and plaintiff recovered a judgment for $663.24 and costs, to reverse which the cause is brought to this court, on error. It is insisted, that the written instrument upon which the suit was brought, and described in the first and second counts of the declaration, was improperly admitted in evidence, because it was not stamped as required by the internal revenue law. On the other side, it is urged that it was, and that it was neither used nor admitted as evidence; that it was only referred to as a memorandum and exhibit to a deposition, and that the recovery was had on the original consideration under the common counts, as proved by Johnson; that the court below only referred to the instrument to ascertain the date and amount found due on the settlement proved by Johnson; that for such a purpose a stamp was not necessary. Johnson testified, that when the due-bill was given a settlement was had between the parties, on account of services by defendant in error, rendered for plaintiff in error, and a land transaction and a horse trade. That there was then found to be due to the defendant in error the sum named in the due-bill. This witness however failed to state the sum. To explain his deposition, defendant in error offered to read the due-bill, and plaintiff in error objected, but did not specify the want of a stamp as a ground for excluding it, but the court permitted it to be read for that purpose. In the case of Jacob v. Lindsay, 1 East, 460, it was held, that an account receipted, but not stamped, although it could not be read in evidence per se, yet it was competent for the plaintiff to prove, that, upon the calling over the various articles to the defendant, he admitted that he had received them; and the witness might refer to the account to refresh his memory. Again, in the case of The King v. The Inhabitants of Pendelton, 15 East, 449, it was held, that while unstamped articles of agreement could not be read in evidence, the court might look at them to ascertain when the time of service of one of the parties ceased, so as to enable them to determine their course in receiving oral evidence of a paroi agreement for service at wages, after the apprenticeship had ceased. To the same purport is the case of Maugham v. Hubbard, 8 Barn. & Cressw. 14. And the same rule is announced in Greenleaf’s Ev. § 436. And this seems to be the well settled doctrine of the courts. We are therefore unable to say that the court erred in permitting it to be read for that purpose. Even if it could not have been read as evidence to prove the contract, it was admissible for the purpose that it was read. We do not deem it necessary to determine whether the general government has the power to prevent such a contract from being used in evidence under State laws, as it was admissible either with or without a stamp for the purpose for which it was used. But when it was thus admitted to explain Johnson’s deposition, it showed another thing, and that was, that the money found to be due was to be paid in a particular manner. It provided that the money should be paid out of the proceeds of sales of territory, sold by one Johnson and defendant in error, by retaining the half due defendant in error, until the note should be paid. When this instrument was received in evidence to explain the deposition, it had to be taken as a whole, and as well for one party as the other. There is no evidence in the record to show that the note was not paid in the mode specified on its face. From this language it is reasonable to infer, that defendant in error Johnson, or some other person, had control of indebtedness already made, or that they were to make sales, from which the money was to be paid. It provides that the money is to be paid by retaining the half due plaintiff in error. We think this clearly implies that defendant in error had the control of the funds, or at least was to have their control, necessary for its payment. Had these funds been in the hands of any other person the payee could not have retained them. Until he proved that the funds were not in his hands, or that there had been a breach of that provision of the note, he could not recover. The judgment of the court below must be reversed, and the cause remanded. Judgment reversed.