Grafton Bank v. Woodward

Richardson, C. J., delivered the opinion of the court- The first question in this case is, whether the direction to the jury, with regard to the testimony of Hale* was correct ? In order to determine this question, it is necessary to see distinctly what was the matter in dispute between the parties. It was not denied that there was an agreement between the bank and Hale with respect to the note on the 28th January, 1824 ; but the question was* what was that agreement ? On the part of the defendant, it was said that the agreement was absolute and unconditional to wait sixty days at all events. On the other side, the agreement was alleged to be, to let the note lay, as it lay, for the first sixty days after it was made, payable on demand, although the interest had been paid [308] ⅛ advance for that term. Now as to the terms of the contract, and the manner In which the directors agreed to let the note lay, Hale knew nothing beyond what the cashier told him. If then the cashier was Hale’s agent, nothing can be clearer than that the declarations of the agent cannot be evidence, in cases where he may be called as a witness. 4 N. H. Rep. 236, Ross v. Knight. But if the contract was in fact made between Hale and Wright, the latter acting under the direction and as the agent of the directors in the transaction, then the declarations of Wright may be considered as a part of the res gesta, andas such, are admissible as evidence. The real question then is, in what relation Wright stood to the parties in the making of this contract. There is no dispute about the facts, and the question is purely a question of law. It is not denied, that Hale applied to the cashier for day of payment of the notes he had given to the bank, that the cashier told him the proposition must be laid before the directors ; and that Hale’s proposal was reduced to writing and delivered to the directors by Wright. And the case states, that after some time the cashier informed Hale that the directors had agreed to give him the indulgence he desired. This is admitted to have been the manner^ in which the contract was made. Now there is no dispute that the cashier was the general agent of the bank. It is not denied, that he acted as such in receiving the money which Hale paid, and in other parts of the business. But did he make the contract with Hale as the agent of the bank ? This is the question, and it is a question very easily determined. It is perfectly clear upon the case stated, that the cashier had nothing to do with the making of the contract except to be the medium of communication between Hale and the directors. If he was the agent of the bank in all other matters between Hale and the bank, it Is certain that he had no agency in the making [309] of this contract further than to carry Hale’s proposal to the directors, and bring back their answer. ' The contract was made by the directors themselves. Hale knew he was contracting with the directors.— Wright did not interfere at all in the business, except to pass between Hale and the directors. So far then as Wright can be considered as an agent in relation to the contract, he was the agent of Hale to carry his proposals to the directors and receive and bring back their answer. Such being the nature of the case, it is perfectly clear that the declarations of Wright cannot be considered as part of the res geslw, and of course were not competent testimony, and the direction which was given to the jury was correct. It is objected on behalf of the defendant, that the rules of the bank were improperly admitted as evidence in the case, because it does not appear that Hale had any notice of the existence of those rules. This objection is easily answered. The plaintiffs put the rules into the case as evidence merely to meet Hale’s testimony ; and the evidence could have had no influence in the case except to render his story as to Wright’s declarations improbable. But we are now of opinion, that the jury were properly directed, that Wright’s declarations were not evidence, and must have no weight in the decision of the cause. And it is very clear, that it is no ground for granting a new trial, that improper evidence was admitted on the side of the plaintiffs merely to meet evidence which ought not to have been admitted on the other side. We are, therefore, of opinion, that.there must be Judgment on the verdict. This action was commenced by a writ returnable to this court at November term, 1834. The defendant filed his plea at November term, 1825. At May term, 182S, the plaintiff' demurred to the plea, and there was a join-der in demurrer. At November term, 1829, the court [310] decided that the plea was in law sufficient, and thcreup-on the plaintiff moved for leave to withdraw the demurrer and take issue upon the matter of the plea, which was granted. The cause was tried at May term, 1830, and a verdict returned in favor of the plaintiff, and now at this term, judgment having been rendered upon the verdict. Parker, for the defendant, moved the court to allow the defendant to tax the costs of the demurrer. Bell, for the plaintiff. By the court. We are of opinion that the plaintiff is entitled, to tax the costs of the suit from the commencement up to May term, 1828, inclusive, and all the costs which have arisen since November term, 1829 : and that the defendant be allowed the costs of November term, 1828, and of May and November terms, 1829.