Martin v. Good

Tuck, J., delivered the opinion of this court. The objection to evidence made by the appellant is to be found in the middle of the statement of facts, it not appearing whether the point was raised on what precedes or on that which follows the objection. Although this was remarked upon at the trial, we think it can make no difference, because as the objection cannot be considered as applying to both portions of the statement, and, as the evidence, before and after-the objection is substantially the same, one or the other must be considered as having gone to the jury without objection. But, as the question is an important one, and was fully ar [409] g'ued, we shall not regard the manner of making the objection, but decide the point intended to be raised for review, and that is, whether the evidence of the witness as to the terms of the agreement between the parties was properly admitted, after he had said that he had no recollection of the paper, and that his memory was not so refreshed by reading it as to enable him to recollect the amount of accounts taken, or the particular dejifs assumed by each partner ? ' Whatever rules may have existed, as shown by the ear cases, requiring that the witness should be able to say, aftci reading a memorandum, that his memory was so far refreshed as to enable him to testify to the facts therein stated, independently of the memorandum, it is very certain that they are not now enforced with the same strictness as formerly, in this country and in England, the doctrine has been extended and applied to cases where justice would, otherwise, have failed, and, as we think, on grounds quite compatible with fundamental principles.^/For example, where it became necessary' to prove the receipt of money, and the witness said that from seeing the entry in his own book, made by himself, he had no doubt he had received the money, his testimony was allowed. Maugham vs. Hubbard, 15 Eng. C. L. Rep., 147. 8 Barn. & Cress., 14. The same principle applies where persons are! called to prove the execution of deeds, and other writings to! which their names appear as witnesses, or to speak of dates,f amounts and other details which a man cannot carry in hi^ mind, but of which they have made memoranda. They may,' have no recollection of the facts, and yet, with the utmost safety, be willing to swear that they have no doubt of their occurrence, merely because their handwriting would not haveji appeared in connection with them if they had not taken place as therein stated. We might refer to many authorities in support of this view, but content ourselves with naming 1 Smith’s Leading Cases, 139, Price vs. Earl of Torrington; 4 Ph. Ev. (Cowen & Hill, 726, note 377,) L Greenl. Ev., sec. 437; 16 Wend., 586, where the cases may be found. In The State vs. Rawls, 2 Nott & McCord, 331, it is shown that the doctrine in 1. Phillips’ Ev., 209, that a witness can [410] not testify, after reading the memorandum, unless he can speak of the facts independently of the memorandum, is not sustained by the cases referred to by him; and several judges, whose attention appears to have been particularly called to the subject by the remarks of Mr. Justice Nott, have expressd their concurrence with him, and, indeed, the annotators upon that valuable treatise have signalized his opinion as a “bold and successful vindication of the English cases from the narrow construction of Phillips.” Cowen & Hill’s Phillips, Vol. 4, page 731, note 377. See Topham vs. M’ Gregor, 1 Carr & Kir., 320, in 47 Eng. C. L. Rep. 2 Adol. & Ellis, 210. 15 Wend., 193, Clark vs. Vorce. 16 Wend., 586, Merrill vs. Ithaca & Owego R. R. Co. Halsey vs. Sinsebaugh, 15 N. Y., (1 Smith,) 485. Haven vs. Wendell, 11 N. Hamp., 112. Watson vs. Walker, 3 Foster, 471. State vs. Colwell, 3 R. Island, 132. Bartlett vs. Hoyt, 33 N. Hamp., 151. From an examination of the adjudged cases, we are of opinion that the law applicable to the point under review is correctly stated in 1 Greenlf. Ev., sec. 437, as follows: “ Where_ the writing neither is recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of any thing contained in it, but neverthe-' less, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to the fact,” the testimony will be received. The examples put show the reasonableness of the doctrine, and that the ends of justice require it to be so. A more recent author, whose conclusions, we think, are generally sustained by the authorities, states the English doctrine substantially in the same way. Powel on Evidence, 308, in 96 Law. Lib., 119. Here the witness stated, that from the paper being in his own handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and upon cross-examination he gave, in effect, the same testimony. If more were required in such cases, memoranda to refresh the memory would be of little use, because few men could undertake to relate the particulars of such transactions, independently of the paper, and the pur [411] poses of judicial tribunals, in promoting the ends of justice, would be defeated. We are not, aware of any rule of evidence that sanctions the appellant’s attempt to get in the testimony proposed in the second exception, and excluded by the court. It was insufficient to prove that the witness had been imposed on by Good in preparing the agreement; in other words, that he had perpetrated a fraud on Martin, which was one object alleged in the offer, and the same may be said of the purpose to follow it by evidence that the note had been altered. Forgery or alteration of paper cannot be proved in that loose and uncertain way. Besides, the inquiry was not within the issue. A man’s character might be ruined by these means, without any power, on his part, to rebut the charge, for when a party is required to prove his case, in an action of this kind, it is not understood that he must be prepared to defend his reputation for honesty when assailed by the other side. The exceptions as to the admissibility of evidence being disposed of, we prov ceed to the prayers. ' The first was properly refused, because there was no evidence that the note in question was given for the individual debt of Good, but there was proof tending to show that it was a partnership transaction, and of that view of the case the defendant had the benefit by (he allowance of his second prayer. The third and fourth were also properly refused. The case did not require proof of payment of all the debts which Good had agreed to pay as a condition precedent, before he could recover for this one which he had paid for Martin. If Good had not performed his contract, and Martin had been made to pay debts assumed by him, it might have been shown, but the plaintiff was not required by the law to open that inquiry. The partnership had been settled on the terms proved, and each became liable for whatever either might have to pay on the other’s account, and ail that either claimant could be required to show, in an action for money so paid, was the agreement and payment of the sum demanded. Of course matter of defence would have to be met as in other cases. There was no evidence from which the jury could have [412] found that Good had changed the character of the note, so as to bind the partnership; on the contrary, the proof was that it was originally a debt of the firm, and that Martin had agreed to pay it. Adding the word Ctand” did not change the liability of the parties, there was, therefore, no warrant for the fifth prayer. (Decided July 29th, 1859.) Judgment affirmed.