Jenness v. Berry

Parker, C. J. The ruling of the court respecting the examination of the witness and the prevention of the party from introducing evidence to show that the contract was in writing, before the examination of the witness was closed, was according to the common, course of practice. The witness denied that the contract was reduced to writing, and on that state of the evidence his testimony respecting its terms was competent. If the plaintiffs desired to controvert that testimony they would have an opportunity to do it at the usual time for cross-examination, and subsequently, by the introduction of testimony on their part. But the court could not be required to change the usual course of the trial, by separating that question from the rest of the case, and determining it by an interlocutory decision preliminary to further proceedings. It was a matter within the discretion of the court how to proceed. If the testimony had appeared suspi [555] eions the plaintiffs might have been permitted to cross-examine upon that point before the witness proceeded to state the terms of the agreement, but the plaintiff had no right to require that this should be done. After the plaintiff had introduced evidence to show that the contract, respecting which Andrew Berry testified, was in writing, the court decided that the evidence of the witness was admissible to show what the contract was; because, as the case finds, it appeared that the contract, if it ever had existence, had been lost. This ruling did not perhaps make the necessary distinction between evidence of a contract which has not been reduced to writing, and evidence of a written contract which cau not be produced. In the first class of eases the proof of the contract rests in evidence of the verbal declaration of the parties and of their acts. In the other it consists in showing the existence of a written contract and its loss, and then introducing proof of the contents of the written instrument. If it appear that the contract has been reduced to writing, that is to be produced, if to be had. If not, secondary proof may be offered, on showing its loss. But that secondary proof is not the verbal declarations of the parties in making their agreement, hut the contents of the instrument which they executed. This may be done in various ways. The declarations of the adverse party respecting the contents may be admissible. But the same rule which requires the production of the instrument, if to be had, requires, as secondary proof, evidence, not of the negotiation which resulted in the written contract, but the terms of the writing itself. It would be a dangerous temptation to parties to lose their papers, if that would authorize the admission of such evidence as might have been admissible if the contract had never been reduced to writing. In cases like the present, where there is, upon the whole evidence, a disputed question of fact whether the contract was reduced to writing, it may he necessary to receive [556] evidence of both descriptions, and to submit that question to the jury, with instructions, if they find the contract was reduced to writing, to consider only that part of the evidence which tends to show the contents of the writing, in determining the terms of the contract. It does not appear that George Berry had any such interest as should have excluded him from testifying. After the acceptance of his disclaimer he was entitled to a discharge, and might be regarded as no longer a party to the suit. By declining to take issue upon the disclaimer, the plaintiffs admitted that he was not a proper party. There is nothing to show that he would gain or lose by the„event, nor does it appear that the verdict or judgment could be evidence for or against him in any subsequent action. He is not shown to 'be in privity, so as to be concluded by the verdict and judgment in any action for mesne profits. The judgment obtained by Alexander S. Berry against George Berry, upon the note, was not conclusive evidence against the defendant that the former was a creditor of the latter at the date of the conveyance, nor was it conclusive evidence that he was a- creditor at the time when the suit was commenced. It might have been commenced fraudulently, for the very purpose of avoiding the deed, when in fact no debt existed. But the judgment could not be impeached by showing that the note was made on the Lord’s day. That did not show that a debt did not exist, nor that the suit was fraudulent. If the note was made on Sunday, contrary to the provisions of the statute, the maker might allege that he was not bound by it; but if he did not see fit to make that defence, no one could make it for him. Smith v. Bean, 15 N. H. Rep. 577. After the judgment he could no longer take that objection himself. On the case before us it is perhaps hardly probable that the jury found against the plaintiff upon that point, but they might have done so. The jury were instructed that, as the law stood at that [557] time, the note, if made on Sunday, was void, unless redelivered ; and although they were told that on the evidence there could not probably be much doubt that it was so, they may have had a different view of the evidence from that taken by the court. Upon the last point there is an omission to state particularly the circumstances upon which the instruction was based. It does not appear what agreement was made or what constituted the acquiescence ; and the instruction may therefore be regarded as too broad on the facts stated, although it may have been warranted by those actually in evidence. __If there was an acquiescence merely by taking no present measures to interfere with the possession then held under the deed, that would not bar or estop A. S. Berry from afterwards asserting bis rights as a creditor, if Ms debt was not paid. If ho made any agreement confirming the deed upon any consideration, or any statement or agreement to that effect, upon the faith of which the grantees acted as they would not otherwise have done, or under such circumstances that his afterwards asserting Ms rights as a creditor, if permitted, would operate as a fraud upon them, then the instruction was correct. If, without any consideration, he said the conveyance might stand, and they had not acted upon that in a manner different from what they otherwise would have done ; or if the circumstances were such that, there being ño consideration, he could retract what he had said, without the change operating to defraud them, then he was at liberty so to do. New trial granted.