Ferris v. Boxell

Mitchell, J. As to the main cause of action it is conceded by plaintiffs' that, in order to recover, it was incumbent upon them to prove that they had paid the judgment in favor of Gray against R. J. Boxell. The only evidence which they offered to prove that fact was a written assignment of the judgment to them by Gray, which recited that it was executed “in consideration of $800, to him paid by plaintiffs, the receipt whereof is hereby acknowledged.” Assuming that the taking of this assignment, if plaintiffs actually paid the money, was equivalent to paying the judgment, still it is clear that the receipt contained in this instrument was incompetent, as against the defendants, as evidence of the fact of payment. It was res inter alios acta. A person’s receipt is not alone evidence to prove payment against a third party. There are cases (not necessary here to be specified) where a receipt by a third party, in connection with other facts, may be competent evidence; for example, when the person to whom the payment is made is pointed out by law, as in the case of the payment of taxes to a public officer. So, perhaps, when the person to whom the payment is to be made is designated by the contract of the defendant, as in the case of an order on the [265] plaintiff iu favor of such person. But in this case the receipt sim-pliciter of a stranger was offered to prove the fact of payment against •defendants. It was clearly incompetent. Plaintiffs, however, invoke, as establishing a different rule, Gen. St. 1878, c. 73, § 67, which provides that every written instrument, (with •certain specified exceptions,) if proved or acknowledged in the manner provided for taking the proof or acknowledgment of conveyances ■of real estate, shall be entitled to be read in evidence in all courts of justice. They entirely misapprehend the purpose and effect of this statute. It merely obviates the necessity of other proof of the execution of the instrument, but does not make it admissible for any purpose for which it would not have been admissible at common law when its execution had been first duly proved. There being no other evidence offered to prove the fact of payment, all testimony as to good faith on part of plaintiffs was entirely immaterial, and hence properly excluded. Plaintiffs, however, contend that they had at least made out a cause of action as to the $80 attorney’s fees and expenses. There are at least two reasons why they were not entitled to recover any part of the sum: First. Assuming that defendants would be liable for attorney’s fees and expenses incurred by plaintiffs in defending the action on the bond brought by Gray, we can find nothing in their agreement (Exhibit A) obligating them to pay attorney’s fees and expenses incurred by plaintiffs in commencing the former action against them; and there is no evidence to show what part of this $80 was incurred in the one action and what part in the other; nothing furnishing any basis on which to apportion the amount between the two. Secondly. The plaintiffs merely proved the fact that they paid this sum. There was no evidence as to the value of these attorney’s services, or that these expenditures were necessary or proper to be made. . The action was, therefore, in our judgment, properly dismissed. Order affirmed.