Knowlton v. Thompson

GIDEON, J. In this action plaintiffs seek judgment for a commission alleged to be due from defendants on a real estate loan. The written application upon which plaintiffs base this action, so far as material here, is as follows: “Salt Lake City, Utah, March 3, 1919. “To Hooper Knowlton: Application for loan. “We hereby make application for loan of $75,000.00, time three years. “Applicant, Louis Thompson and J. E. Jensen. “Address, Provo, Utah. * * * [145] “We hereby agree to pay to the said Hooper Knowlton a commission of $7,500.00 cash in the event his parties agree to make a loan of $75,000.00 on property described in this application for loan, on or before ninety days from date of receiving the above loan. “[Signed] Louis Thompson. “J. E. Jensen.” Subsequent to March 3, 1919, and on May 15th of that year, the signers of that paper obtained a loan from Zion’s Savings Bank & Trust Company’ of Salt Lake City for $75,000 and secured payment of the same by a mortgage on the real property referred to in the written application of March 3d. Plaintiff Young before the institution of the action, by assignment, became the 'owner of a one-third interest in the cause of action. After the institution of the original action J. E. Jensen, died, and thereafter James 'Chipman, Jr., was appointed administrator of his estate. The defendants filed separate answers, were represented in the district court and in this court by separate counsel, and have filed separate briefs. There is substantial evidence in the record to support the verdict of the jury awarding judgment to the plaintiffs. There is no claim to the contrary. Counsel for the administrator insist that the court erred in permitting any evidence to be introduced in support of plaintiffs’ claim against the estate and in refusing to grant a nonsuit, for the reason that no claim was presented to the administrator which complied with the requirements of the statute, and also that the plaintiffs failed to have the administrator substituted as a party defendant within three months after the rejection of the'claim. On the part of both defendants error is assigned respecting the admission of certain testimony over their objections. We shall consider these questions in the order named. It is provided by Comp. Laws Utah 1917, § 7657, that, if an action is pending at the time of the death of the defendant, the plaintiff must present his claim to the executor or administrator authenticated as in other cases, and that no recovery shall be had in the action unless proof is offered of such presentation. Section 7649, relating to claims against [146] estates and their verification, among other things provides: The claim presented to the administrator did not contain a copy of the written application of March 3, 1919. The claim was verified, and no criticism is made respecting the form or substance of the verification. It is insisted by counsel for the administrator that any claim ^plaintiffs may have had against the estate was founded upon the written application of March 3, 1919, and that it was therefore the duty of the claimants, plaintiffs here, to accompany the claim with a copy of that paper. Numerous authorities are cited holding that any one presenting a claim to an administrator or executor must strictly comply with the provisions of the statute, and that, upon failure so to do, the administrator or executor should not, and cannot, allow the claim. It is therefore argued that, when any one has a claim against an estate, and fails in presenting that claim to comply with the requirements of the statute, the administrator or executor is not only justified in disallowing the claim, but that it is the legal duty of such administrator or executor to disallow it; further, that such claimant cannot have his proof to establish such claim against the estate heard at a later date in a court of law. The difficulty with counsel’s argument so far as this ease is concerned, is that the plaintiffs’ cause of action is not founded upon the written application 1 a copy of which it is insisted should have been attached to the claim. It is apprehended that what the Legislature intended by that provision is that a copy of any instrument which in and of itself constitutes a claim or a promise to pay should be attached to the claim, so that the administrator or his legal adviser can determine whether the contract constitutes an obligation due from the estate. The claim of the plaintiffs' in this action does not appear from the application of March 3, 1919. That paper, standing alone would not indicate that the plaintiffs are entitled to recover anything or have any claim against the estate. At [147] most it is but a part of the evidence by which plaintiffs can prove that the estate is indebted to them, and that they have a legal claim against it. [146] “If the claim be founded on a bond, bill, note, or any other instrument a copy of such. instrument must accompany the claim, and the original instrument, must be exhibited, if demanded, unless it be lost or destroyed. * * *” [147] It appears that the claim was rejected by tfye administrator on April 8, 1921, and was returned to plaintiffs’ attorneys with a letter advising that the claim had been rejected. Nothing further was done concerning the matter until the 28th day of March, 1922. On that date the case was called for trial in the district court. Apparently without objection, the complaint was amended so as to make James Chipman, Jr., administrator, a party defendant. It is insisted by counsel that plaintiffs having neglected to have the administrator substituted as a party defendant within three months after the rejection of the claim, are barred from maintaining an action against the estate. That contention is based upon Comp. Laws Utah 19.17, § 7653, in which it is provided that, whenever a claim is rejected by an executor or administrator or a court, the holder must bring an action in the proper court against the executor or administrator within three months from the date of the rejection, if the claim be then due; “otherwise the claim shall be forever barred.” It is provided in section 6513 that an action or proceeding does not abate by the death or disability of a party to that action if the cause or action or proceeding survive or continue. That section also provides that, upon the death or disability of a party, the court may, on motion, allow the action or proceeding to be'continued by or against his representative or successor in interest. The particular objection urged was before the Supreme Court of California in Gregory v. Clabough’s Ex’rs, 129 Cal. 72, 62 Pac. 72. In the course of the opinion the court said: “The point intended, seems to he that the suit was not revived against the executors for over three months after the claim was rejected. But there is no provision of the Code requiring that it should he revived within any definite period.” The California statute is identical with our section 7653. The trial court did not err in overruling the objection to the introduction of the claim in evidence nor in holding that plaintiffs were not limited to 90 days in asking for a substi [148] tution of the administrator in an action pending at the date of the death of the decedent. It is admitted that 2 defendant Thompson and deceased, Jensen, obtained a loan from Zion’s Savings Bank & Trust Company subsequent to March 3, 1919, in the sum of $75,000. The issue of fact is whether Knowlton, either by himself or through his agents or associates, was the instrumentality by or through whom the loan was obtained. It appears that the bank has a committee designated in the record as a loan committee, and also as an executive committee. It is the duty of this committee to pass upon applications for loans. The committee at the date in question consisted of Messrs. Bennett, Winters and Giauque. The cashier of the bank was a Mr. Beebe. It was customary for this committee to meet daily, and the cashier would present to it such applications for loans as he desired to have the committee consider. An application for the loan in question was presented in some form to the officers of the bank. It was not signed by any one. The matter was before the committee on different dates. It is the contention of the defense that the decedent, Jensen, was personally acquainted with the officials of the.bank, had done business with that institution for years, and that he and his codefendant obtained the loan through that relationship, and not through any effort on the part of plaintiffs. It is the claim of plaintiff Knowlton that he was assisted in negotiating this loan by a Mr. Van Dyke, who, it appears, was acquainted with at least some of the officials of the bank, and had frequently done business with that institution prior to the date of negotiating this loan. Mr. Bennett was a witness for plaintiffs. During his direct examination he was permitted to state that, at a meeting of the loan committee, when neither plaintiffs nor defendants were' present, he made inquiry “where the application for the loan came from,’’ and further that “I was told by Mr. Beebe that the loan was presented by Van Dyke.’’ On motion of the defense that testimony was stricken. During the course of a long cross-examination of this witness the information was elicited that the witness had made inquiry as to who presented the appli [149] cation for the loan. No question was asked on cross-examination as to what information he was given in response to that inquiry. On redirect plaintiffs’ counsel again renewed the .question as to what was said in reply to the inquiry of the witness, and, over the defendants’ objection, the witness was permitted to say that he was informed, “Van Dyke brings the loan to us.” Error is assigned on the court’s ruling permitting that testimony. Apparently the testimony was permitted by the court on the theory that the defense had brought out part of a conversation, and that therefore plaintiffs were entitled to have the whole of the conversation related to the jury. In this court it is argued that the testimony was admissible for that reason, and also on the further ground as being a part of the res gestas. It was not shown, or attempted to be shown, that any member of the loan committee or the cashier of the bank was in any sense an agent or representative of either the plaintiffs or defendants. The testimony is therefore admittedly hearsay. That it is not admissible under the limitations of the res gestas rule, as stated by this court in Cromeenes v. San Pedro, etc. R. R., 37 Utah, 475, 109 Pac. 15, Ann. Cas. 1912C, 307, and as applied by us in the recent case of Booth v. Nelson, 61 Utah 239, 211 Pac. 985, and as discussed in Meyers v. Railroad, 36 Utah, 307, 104 Pac. 736, 21 Ann. Cas. 1229, seems clear. It was not admissible as being a part of a conversation 3, 4 brought out by the defense for two reasons: (a) The witness did not testify as to any conversation had in the committee room. On cross-examination the fact was elicited that the witness had made inquiry, but as to what was said in reply to that inquiry was not stated. It cannot, therefore, be claimed that the witness stated any part of a conversation had between members of the committee, (b) Hearsay statements of a third person are not admissible entitling the adverse party to the whole of the conversation where a part of a conversation has been given. 6 Cyc. Ev. p. 450; Moore v. O’Dell, 27 Okl. 194, 111 Pac. 308; Jones, Ev. (2d Ed.) § 297. It remains to be determined whether the admission of this [150] testimony constitutes prejudicial error. A majority o£ the court are of the opinion that it does not. Mr. Justice CHERRY has put in writing the reasons upon which the court bases its conclusion on this point, and the same are incorporated herein as part of this opinion as follows: The principal defenses made to the action were that the written agreement sued on was materially altered without authority, after its execution, and that it was orally agreed that the interest on the loan to be procured by plaintiffs was to be at the .rate of 6 per cent., and that the interest on the loan procured was at the rate of 8 per cent. Whether or not the plaintiffs did assist in procuring the loan, within the terms of the agreement for a commission, was made an issue by the pleadings, but upon this question there is no substantial conflict in the evidence. The defendants offered proof that previous to,their employment of plaintiffs they had applied for a loan of $105,000 to the same bank which later made the $75,000 loan upon which the commission is claimed, but both of them expressly admitted that later the plaintiff and his agent, Van Dyke, took them to the bank, introduced them (although they claimed unnecessarily), and remained at the meeting where the matter of the loan was discussed and considered. Defendants also produced a witness, O. C. Beebe, the cashier and member of the loan committee of the bank, who testified that plaintiffs’ agent, Van Dyke, called at the bank to make application for a loan for a large amount of money; that he was referred to the real estate appraiser of the bank (who died before the trial), with whom he consulted; that later he came to the bank with the defendants, when the making of the loan was further considered. On the part of the plaintiffs the evidence was abundant and positive that the plaintiff and his agent, Van Dyke, had initiated and conducted the negotiations for the loan which was later made to defendants, and for, which the commission was claimed. Plaintiffs also introduced in evidence a letter written, after the loan was made, by defendant Jensen to defendant Thompson, directing him to pay Van Dyke [151] $7,500.00 out of certain moneys in which they were interested. The defendant Jensen admitted the writing of the letter. The hearsay testimony complained of was that Mr. Beebe said to the loan committee, “Van Dyke brings the loan to us.” That fact was otherwise abundantly proved by competent evidence, and was virtually admitted by both defendants. Comp. Laws Utah 1917, § 6968, is as follows: “No exception shall he regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting.” This principle has been applied by this court in a variety of cases, both civil and criminal, but reference is now made to those eases only which deal with the erroneous admission of evidence. In State v. Cluff, 48 Utah, 102, 158 Pac. 701, Chief Justice Straup construed Comp. Laws Utah 1907, § 4975, relating to criminal procedure to be in legal effect the same as section 6968, supra, and said: “A denial of a litigant’s right of proper cross-examination may affect a substantial right. So, granting improper cross-examination to his adversary. Whether a denial or permission of cross-examination as to a particular matter is calculated to do harm is dependent upon a variety of things, chiefly the character of the matter sought or elicited and its bearing upon or relation to other evidence. When so considered, if it is of such character as is calculated to do harm, prejudice will be presumed. Whether the presumption is overthrown by the record is again dependent upon a variety of things, chiefly the issues, and the Quantum and character of other evidence, and the natural and probable effects when considered with the whole of the evidence. Though prejudice should be presumed from the errors here committed, yet we, on the record, are satisfied that no harmful result of any substantial right was produced by them. That the charged adulterous act was committed by the defendant is shown by good and undisputed evidence and by the defendant’s own and undenied admissions. Upon this evidence we do not say that the defendant is guilty, or that he ought to have been convicted. It is not within our province to decide that or to determine his guilt or innocence. But because of the undisputed evidence, and the undenied admissions of the defendant, we are satisfied that the same result would have been reached by the jury had not the improper cross-examination and argument been permitted, and hence that the verdict was not [152] influenced thereby. It may he asked, How do we know that,? We know it by attributing to the jury the common sense and experience possessed by the average juror who, mindful of his duty as a juror and considering the evidence dispassionately, could not well have rendered a verdict of not guilty without disregarding the undisputed evidence and undenied admissions of the defendant as to his guilt.” In Baird v. D. & R. G. R. Co., 49 Utah, 58, 162 Pac. 79, Mr. Justice Frick says: “Where a case is tried to a jury and improper or incompetent evidence is admitted to establish a material fact, respecting which the evidence is in conflict, the admission of such evidence ordinarily constitutes reversible error. There are, however, conditions under which the admission of improper evidence, even where a case is tried to a jury, may not constitute prejudicial error. Such may be the case where there is abundant competent evidence to establish the fact which is also sought to be proved by improper evidence, and where there is no evidence to the contrary.” See, also, Thomas v. Ogden R. T. Co., 47 Utah, 595, 155 Pac. 436; Moore v. U. I. C. R. Co., 52 Utah, 373, 174 Pac. 873; Davis v. Heiner, 54 Utah, 428, 181 Pac. 587; Barry v. L. A. & S. L. R. Co., 56 Utah, 69, 189 Pac. 70; State v. Lake, 57 Utah, 619, 196 Pac. 1015; Boeddcher v. Frank, 48 Utah, 363, 159 Pac. 634; Barker v. Savas, 52 Utah, 262, 172 Pac. 672; State v. Nell, 59 Utah, 68, 202 Pac. 7. This principle of law has general application. In 2 R. C. L. p. 247, it is said: “The erroneous admission of evidence» has, under the circumstances of the case, frequently been held harmless error and therefore not ground for reversal. This rule has frequently been applied in civil cases. It is obvious that in the stress of a trial the trial judge must pass upon questions relating to the admission of evidence Without time for reflection or study, and if a case were to be reversed for every technical error in rulings on evidence but few judgments would be affirmed. To remove such a condition of affairs the harmless error doctrine is invoked in almost every case in which an appellate court is asked to review a ruling on the admission of evidence, and in perhaps a majority of cases it operates as a shield for the trial judge.” In McKay v. Seattle Electric Co., 76 Wash. 257, 136 Pac. 134, the court says: “While the testimony admitted was clearly hearsay, and was elicited by the trial judge, which fact might have given it some [153] weight with the jury, nevertheless it was cumulative of competent testimony given by other witnesses, and could not have been prejudicial.” In Barker v. Mo. Pac. Ry. Co., 89 Kan. 575, 132 Pac. 157, it is said: “Jurors are not sensitive plants from which every slight breeze or breath of incompetent evidence must be scrupulously excluded in order to maintain their qualifications to decide a case, but are usually men of practical sense and experience; and, when the issues involved have been fully presented, and competent evidence has been heard touching the conflicting claims, it is not the policy of the law, nor the right of either party, to send the case back for another trial, unless evidence has been allowed to creep in, the incompetency of which is such as to fairly show material prejudice.” ' See, also, Schrader v. C. C. & St. L. R. Co., 242 Ill. 227, 89 N. E. 997, 26 L. R. A. (N. S.) 226; Idol v. S. F. C. Co., 1 Cal. App. 92, 81 Pac. 665. Also Louisville R. R. Co. v. Johnson, 131 Ky. 277, 115 S. W. 207, 20 L. R. A. (N. S.) 133; Vallejo & N. R. Co. v. Reed O. Co., 169 Cal. 545, 147 Pac. 238. In 'view of tbe issues and the evidence in this case, it cannot reasonably be said that, if the hearsay evidence had been excluded, the jury would have reached a different result. If the only issue to be determined by the jury 5 was whether Yan Dyke made application for the loan they must have found for the plaintiff upon the competent evidence which was abundant and positive, and which was wholly uneontradicted. The prior application for a loan by defendants was not inconsistent with or contradictory to the application later made by Yan Dyke. It was not claimed that Yan Dyke did not take the application to the board; it was merely asserted that the defendants hád mentioned the matter to the board at an earlier date. Judgment affirmed, with costs. WEBER, C. J., and THURMAN, FRICK, and CHERRY, JJ., concur.