Houlton v. Manteuffel

Mitchell, J. 1. Assuming that the certificate of defendant’s baptism, “issued by his church,” would have been admissible as an official entry or register to prove the fact and date of his baptism, it. was not competent to prove his age or the date of his birth. An official entry or register must speak only to that which it was the duty or business of the official to do, and not of extraneous facts, which did not occur in his presence. Consequently the mention of a child’s age in the registry of christenings is, alone, no proof of the date of his birth. 1 Greenl. Ev. § 493; Burghart v. Angerstein, 6 Car. & P. 690; Rex v. Clapham, 4 Car. & P. 29; Wihen v. Law, 3 Starkie, 63. The certificate was properly excluded. 2. The date of a person’s birth may be testified to by himself or by members of his family, although he must, and they may, know the fact only by hearsay based on family tradition. This falls within the rule admitting such hearsay evidence in matters Of “pedigree, ” which term embraces not only descent and relationship, but also the facts of birth, marriage, and death, and the times when these occurred. 1 Greenl. Ev. § 104; Hill v. Eldridge, 126 Mass. 234; Commonwealth v. Stevenson, 142 Mass. 466, (8 N. E. Rep. 341;) Cheever v. Congdon, 34 Mich. 296. The evidence admitted as to defendant’s age was therefore competent, and was, in our opinion, such as to require a finding that, at. the time of the execution of the note sued on, the defendant was a minor; and consequently, the findings of the court, in so far as they were to the contrary, were not justified by the evidence. But for the reason hereafter stated this was not prejudicial error. 3. Assuming that the defendant was a minor when he executed the note, the remaining question was whether he had ratified it after he became of age, either by express act, or by failing to disaffirm within a reasonable time after majority. On this issue the findings, of the court (to the general nature of which no objection was made) are also against the defendant. According to the doctrine of this, court, as laid down in Goodnow v. Empire Lumber Co., 31 Minn. 468, (18 N W. Rep. 283,) the defendant was bound to repudiate or dis-affirm within a reasonable-time after majority. Had the action of the defendant stopped there, we think that the notice of repudiation,. [188] and the reconveyance of the land, for which the note in question was given, left at plaintiff’s last usual place of abode with his sister, (he himself having in the mean time gone to another state,) some two and a half months after defendant became of age, would, under the circumstances, have constituted a sufficient disaffirmance. We are also of opinion that mere offers on part of defendant, by way of settlement of the claim made against him, to deed back the land if plaintiff would refund part of what he had paid, or even return him his note, did not constitute any affirmance of the contract. But the undisputed evidence is that after all these things had occurred, and nearly a year after defendant attained his majority, he and the plaintiff came to an arrangement, by which, in consideration of the latter’s agreement to remit the interest, the former agreed and promised to keep the land, and pay the principal of the note. In our opinion this promise amounted to such an acknowledgment of the contract on part of defendant as to not only justify, but also require, a finding that there had been a ratification. The effect of this promise as an acknowledgment and affirmance of the contract was not affected by the fact that the arrangement was never carried out becáuseof a subsequent disagreement of the parties as to the amount of the accrued interest. Whether this promise bound the defendant to pay the whole debt, or only the part which he promised to pay, and whether under the evidence there was any variance between the pleadings and the proof, are questions which we do not consider, as no such points were raised either here or in the court below. See, however, Edgerly v. Shaw, 25 N. H. 514. Both parties lumbered up the case with much immaterial evidence, the admission of some of which the defendant here assigns as error, but, in view of the undisputed evidence of ratification already referred to, we think it was error without prejudice. The result is that the order appealed from must be affirmed. (Opinion published 53 if. W. Rep. 541.)