Green v. Caulk

Le Grand, C. J., delivered the opinion of this court: This is an action instituted to recover for work and labor and materials, furnished by the plaintiff in the repair of the house of the defendant, at Annapolis. The questions which this court are now called upon to decide, relate to the rulings of the Circuit court, touching the admissibility of testimony. The defendant took eight excep tions to the opinions of the court. They will be noticed in the order in which they are presented in the record. As to the first exception: — The plaintiff after giving general testimony of the work done and materials furnished, and of the value of both, called to the stand Thomas A. Mitchell, and placed in his hands the bill of particulars marked No. 3. The witness stated that the paper was not in his handwriting, but in that of Mr. Caldwell, a measurer, and that he identified the work títere charged as the work done by him, and measured by Caldwell under his supervision; thereupon he was asked, by the counsel of the plaintiff, whether, in his opinion, the charges in the bill of particulars were fair, and what was the amount thereof? The defendant objected to the question, and the witness in answer to another question, stated, that he could not state from his recollection, even after looking at the bill of particulars, that all the articles charged therein were furnished and the work done as charged. The defendant insisted on her objection, but the court overruled — 572 — it, iand the question was allowed to be put to the witness and answered by him. If the question was improper, it was so because the paper was not in his handwriting, and because after he had examined it he was unable to say, that all the articles charged in it were furnished, and all the work charged, was done. There is nothing in the testimony of the witness to show that, the particular paper was made at his instance, (although the measurement of the tin-work was under his supervision,) or, that in January 1859, the time when he testified, the paper enabled him then to say from anything he had done in connection with the making out of the paper, that he knew what it declared, was true. The matter then stands thus: a -witness is asked as to the correctness of the charges in a bill not made out by himself, and as to the time of the making it out of which there is no evidence, and in regard to. all the items of which, he has not a recollection. We are of the opinion, that under all the authorities the question ought not to have been allowed to be put to the witness. There is is a great deal (unnecessary to be recapitulated here) said in the elementary books, and also, in the adjudged cases, on the general subject of the use of memoranda as evidence, and the circumstances under which they can be referred to by a witness to refresh his memory. What was supposed to be the ancient rule has been relaxed by more recent decisions;, and now it is held not to be necessary that the memorandum should have been made by the witness, but,.if it was made at the time, or about the time, of the occurrence of the fact recorded in it, and the witness from having then seen and recognized it, as containing the truth, of which he is still convinced, at the time of the trial, he may be examined in regard to it. But he must make it an original source of information, otherwise he cannot be allowed to refresh his recollection by reference to it. In section 436, of 1 Greenleáf on Evidence, the rule is thus laid down: “ Where the witness neither recollects the fact, nor remembers to have r'ecognized the written, statements as true, and the writing was not made by him, his testimony, so far as it is founded — 573 — upon the written paper, is but hearsay; and a witness can no more be permitted to give evidence of his inference from what a third person has written, than from what a third person has said.” In the case under consideration, he does not remember (at least he does not so testify) to have recognized the bill of particulars as containing a true statement; indeed, there is nothing, in his evidence, going to show that he ever saw it before the trial; and his evidence is, that he cannot recollect, independently of the paper, all the articles charged in it. See Powell on Evidencc, 309, (96 Law Lib.,) Lewis vs. Kramer, 3 Md. Rep., 265. In addition to what we have said in regard to this exception, we remark, that we have not understood this exception as it appears from the notes of the counsel of the appellee, to have been understood by them; it does not, in our opinion, simply raise the question whether it was competent to prove by the witness, he being a tinner, the price of certain tin and tin-work; but as presenting the question, whether the bill of particulars could be verified in the manner proposed, and the testimony given by the witness, in reply to the question shows, that such, was the scope of it. As to the second exception: — The plaintiff proved by the witness, William Q.. Caldwell, that he is a measurer of different kinds of mechanical work, and that he came from Baltimore to Annapolis, at the instance of Daniel M. Sprogle, to measure the work done on Mrs. Green’s house; that he proceeded to measure the carpenter’s work in the presence of Daniel Caulk, John Wiggins and Mrs. Green; that Wiggins and Caulk pointed out the work done, and that Mrs. Green objected to some of the work pointed out as not having been done; witness said he would put such work down as disputed work, but Mrs. Green objected to its being put down at all, as it had not been done by Caulk; witness then said ,he would omit such disputed items altogether. It was also proven by the witness, that the bill of particulars was not made by Mrs. Green’s agreement or consent. The plaintiff then, by his counsel, offered to the witness the bill of particulars No. 1, — 574 — and asked him to state, whether- the same was a statement of his measurements and valuations of said work ? the witness having first stated, that the bill of particulars No. 1, was in the handwriting of his son, made out several days after the witness had completed the measurements; that the measurements were all set down in his Dimension Book, which book was then in possession of witness, and was handed by him to counsel of defendant at their request; that the bill of particulars was made by his son from the “Abstract;” which was made out partly by the witness and partly by his son, under his superintendence, from the Dimension Book; he could not say the bill of particulars was an exact copy from the Abstract, or corresponded in all particulars with the Abstract, as the Abstract might contain errors and discrepancies; that he thought the footings in the Abstract No. 1, of the dollars and cents, were taken from the bill of particulars; before he had left, Baltimore he had compared the bill of particulars with the Abstract, and found them to agree in substance. The witness further testified, that he regarded the bill of particulars as the original statement; that the Dimension Boole was on loose paper, requiring many calculations which were in part made by his son and partly by himself; he examined them all and transferred the results to the Abstract Book. The court allowed the testimony to go to the jury, to which ruling the defendant’s counsel objected. The interrogatory propounded to the witness raises the question, whether he could properly be permitted to rely upon a copy of a copy of an original ? Notwithstanding the witness said he regarded the bill of particulars as the original, his testimony clearly shows, that it was a copy from the statement in the Abstract Book, which latter, with the results of the calculations extended, was taken from the Dimension Book. The principle governing such a state of case, we find very perspicuously and accurately expressed at jcage 311, of Powell on the Law of Evidence, and we accordingly adopt what the author says in regard to it, having verified what he states by an examination of the authorities on which he relies. His — 575 — language (and it effectually disposes of the question asked on behalf of the plaintiff) is as follows: “The memorandum must have either have been made by the witness, or recognized by him, at or about the time when it was made, as correct. It must not contain any of the elements of hearsay, and it will, therefore, be inadmissible if it appear to be the statement of a third person; as where it had been drawn up by such a person from the witness’ own memoranda; or even if it be a copy made by the toilness from, his own original memoranda. The rule is consistent with the general principles of secondary evidence, by which the copy of a copy, unless in the nature of a duplicate original, is entirely inadmissible; and there appears to be neither principle nor authority to support the personally eminent opinion of Mr. Phillips, that a copy of an original memorandum, made by the witness himself from his own orginal, would be admissible. It must be remembered, that the original memorandum is itself not an original, but a transcript and copy of the witness’ own contemporaneous knowledge, which in its oral form would be the strictly primary and original evidence. Therefore, if the copy of a memorandum were admissible to refresh a witness’ memory, there would be no reason why the examined copy of an examined copy of an original document should be, as it clearly is, inadmissible.” .4s to the third exception: — This exception relates to the hardware, and the hauling of it, which was furnished, as alleged, by the plaintiff, in the repairs of the house of the defendant. In regard to the bill of particulars of it, which is marked No. 4, the witness gave the same testimony as he did in reference to the manner and by whom the bill of particulars, mentioned in the last exception, was made out; and the reasoning applied in that instance, is applicable in this. It was further shown by witness, that the plaintiff, in the presence of the defendant, and without denial on her part, said that he had furnished all the hardware, and that he had made a valuation of such of it as had been shown to him by the plaintiff. The witness also testified, that it was his habit, at the time of making his measurements and valuations^ to — 576 — make inquiries, as to the value of the materials furnished, of persons supposed by him to be competent to give him information on the subject, and who were in the habit of buying and selling the same, and that at the time of making the appraisement in question he made such inquiries, and that his testimony was based on information so obtained. The court allowed the witness to inspect the several values of the said particulars, as stated in the bill of particulars, and to state what were the values of the several articles of hardware charged as having been furnished. The defendant’s counsel excepted. The general rule is, that the best evidence which the nature of the case, admits, should be adduced; secondary evidence being admitted only in cases of necessity, or where it is a part of the res gestae, or in corroboration of other and independent evidence going to the establishment of the same fact. All the authorities concur on this subject. In the case before the court, the question is, was the best evidence offered which the nature of the case admitted ? If it was not, then the testimony of the witness was merely hearsay, and, for that reason, inadmissible. The witness'was neither a manufacturer of, nor dealer in hardware; all his information, as testified to by himself, was derived from others, who did not give it under the solemn sanctions of an oath. It was' competent for the plaintiff to have proved the value of the articles by the person from1 whom they were purchased. In any event, we think, if the seller was not produced, that a manufacturer of, or dealer in such articles, should have been, or that it should have been shown that the witness had made, about the time, purchases of articles of the same or similar character. The evidence offered, extended no farther than to place before the jury the declarations of persons, made without any of the usual guards against error and uncertainty. The fundamental' rule is, that the credibility of the witness should be tested by his oath, with the privilege of cross-examination preserved to the party against whom his testimony is adduced. From these considerations it follows that, in the opinion of this court, the testimony objected to was improperly admitted. 1 Green — 577 — leaf on Ev., secs. 98, 99. Lewis vs. Kramer, 3 Md. Rep., 265. 1 Phillips on Ev., 585, (Ed. of 1859,) 4s lo the fourth exception: — The plaintiff having placed in the hands of the witness the “Abstract Book,” to which he had previously referred, inquired of him, whether the entries in the book, in reference to his measurements made at the house of the defendant, corresponded with the entries thereof in the bill of particulars No. 1 ? to which question the defendant objected, but the court overruled the objection, and the witness answered, that they did correspond in their results and “in the carrying out,.” The defendant excepted to the admission of the testimony. After the first exception taken in the case, each one that followed incorporated in it all the facts embraced in the preceding exceptions. And, according to the testimony of the witness Caldwell, the results of the calculations were not transferred from the Abstract Book to the bill of particulars, but from the latter to the former, and, as a consequence, the agreement between the two could be no proof of the accuracy of either, and especially of the bill of particulars. The results of the admeasurements and valuations involved nothing more than the questions of arithmetic, and if these results were but transferred from one paper to another, they could in neither place, by such process, verify themselves. What is said on this exception is. the opinion of a majority of the court. 4s to the fifth exception: — In answer to a question of the court it was distinctly stated, that the “headings” from the Abstract Book were offered by the defendant, as evidence in chief, to prove partnership between the plaintiff and Sprogle. For the specific purpose for which it was offered, i. e., to show a technical partnership, the testimony, we think, was inadmissible, and properly refused by the court. The offer was unaccompanied by any declaration of intention to connect it with other evidence going to show the existence, at any time, of a partnership between the plaintiff and Sprogle; and the evidence offered, of itself, was clearly inadmissible, for the purpose for which it was offered, although, as will be hereafter shown, it was admissible on other grounds. We — 578 — are also of the opinion that the Circuit court ought to be sustained in its ruling, as stated in the seventh exception. As to the sixth exception: — The point of this exception is, that the court refused, to allow the defendant’s counsel to cross-examine the witness, in reference to the entries, in regard to which he had testified, and also in regard to the headings of the same, which he proposed to do, for all the purposes of the defence. We are of the opinion, that the defendant should have been allowed to cross-examine the witness in regard to the entire account, for, although it was composed of many items, it was in reality but one memorandum. The party was entitled to subject the testimony of the witness to every test of accuracy, and it is not for this court to anticipate, or rather to conjecture, what facts might have been disclosed under such an examination. Regarding the memorandum as but one entry, in the eye of the law, we think the' defendant was entitled to the whole of it, aud agree with Abbott, C. J., (Loyd vs. Freshfield, 2 Carr. & Payne, 325,) that “it would be a disgrace to the adminis-' tration of justice, if half an entry could be read without the rest.” As to the eighth exception:- — -The court refused to allow the defendant to prove a partnership between the plaintiff and Sprogle, by showing that Sprogle went to Baltimore and employed the witness, Caldwell, to measure and value all the work done on the house of the defendant; that Mr. Randall, as counsel of the defendant, stated in the hearing and presence of the plaintiff, that she said she had contracted to pay $2000 for all that was done, and that she had paid it; to show the character of the headings of the entries in the Abstract Book, and also contracts entered into by plaintiff and Sprogle, subsequently to the making of the contract with the defendant. We think the ruling of the Circuit court, on this exception, ought to be affirmed: “Evidence offered fora particular purpose may be properly rejected, though admissible generally or for some other purpose.” 6 Gill & Johns., 481. 4 Md. Rep., 509. We have said, in disposing of the sixth exception, that the defendant was entitled to give in evi — 579 — dence the headings of the accounts in the Abstract Book, as part of the same entries offered by the plaintiff, and to cross-examine the witness in relation thereto. But we do not think the headings themselves, unsupported by other proof, were admissible evidence to show a partnership between the plaintiff and Sprogle; nor did the declaration of the defendant tend to prove such partnership, although, being uncontradicted by the plaintiff, it might be admissible for other purposes; and we concur in the propriety of rejecting the evidence of contracts made by the plaintiff and Sprogle jointly, with other persons, in the year 1856, as altogether inadmissible for the purpose of showing there was a partnership existing between the parties in 1854 and 1855. (Decided February 20th, 1861.) We reverse the Circuit court on the 1st, 2nd, 3rd, 4th and 8th, and affirm it on the 5th, 7th and 8th exceptions. Judgment reversed and procedendo awarded.