Bates v. Preble

• Decision Date: 08 January 1894
• Docket Number: No. 123,123
• Citation: 151 U.S. 149,38 L.Ed. 106,14 S.Ct. 277
• Parties: BATES et al. v. PREBLE
• Court: U.S. Supreme Court

151 U.S. 149

14 S.Ct. 277

38 L.Ed. 106

BATES et al.

v PREBLE.

No. 123.

January 8, 1894.

Statement by Mr. Justice BROWN:

This was an action at law brought by Sarah A. Preble to recover of the defendants Bates and Walley, stockbrokers, the value of certain securities, the property of the plaintiff, which she alleged had been converted by the defendants to their own use.

The facts were substantially as follows: Mrs. Preble, a widow and a resident of Portland, Me., acquired by her husband's will certain securities, consisting of stocks and bonds, which she kept in a box in the vaults of the Union Safe-Deposit Company, in Boston. Upon the trial she gave evidence tending to show that she intrusted the key of the box to her son, Edward Preble; that she visited the box herself in 1878, and found all her securities there; that she next visited it in the autumn of 1882, and found them all gone; that at various times between these dates her son had abstracted these securities from the box, to which she had given him access, and had taken them to the defendants, who were stockbrokers, without authority from her, and that the defendants had sold the securities for him; that Walley, one of the defendants, had notice that the securities belonged to the plaintiff, and had fraudulently concealed from her the fact of the conversion, and that she did not discover the conversion until within six years before bringing of the suit.

Defendants claimed that some of her securities they had never sold or dealt with in any way; that others they had received from Edward Preble, and had disposed of by his directions, and upon his account, in the ordinary course of busines, believing them to be his property; that they had no knowledge or notice that any of the property belonged to the plaintiff; that in fact some of the securities did not belong to her; and that if she ever had any cause of action against them for the conversion of these securities, the same arose more than six years before the bringing of her suit, and hence that such action was barred by the statute of limitations.

The jury returned a verdict for the plaintiff for $34,772.88 damages, and handed to the court with their verdict a schedule containing the special items upon which they held the defendants liable, showing the securities which they found to have been converted by the defendants, with the value of the same, and the date of their conversion, from which interest was computed. Upon motion for new trial, the court held that there was no evidence to sustain the finding of the jury with respect to certain of the securities; that the value of such securities should be remitted from the verdict, or that a new trial should be granted. 39 Fed. Rep. 755. Judgment was finally entered for the plaintiff for $28,496.52, being the amount of the verdict, less the amount remitted. Defendants sued out a writ of error from this court.

Samuel Hoar, for plaintiffs in error.

Robert M. Morse and Louis C. Southard, for defendant in error.

[Argument of Counsel from pages 151-153 intentionally omitted] Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

There are 34 assignments of error in this case, many of which are of little importance; and as we have come to the conclusion that the case must be reversed, and a new trial ordered, it is neither necessary nor advisable that we should dispose of them all.

1. The seventh and eighth assignments are taken to the admission of certain pages of a memorandum book purporting to contain a list of securities owned by the plaintiff. Concerning this book, she testified that 'it was her own book, in her own handwriting, never seen by any one until it went into the hands of counsel; that the entries were made in it from time to time; that it showed the securities which she had, which went into the box in the safe-deposit vaults.' One page she testified was cut from an earlier book kept by her, which was pinned into this book, and that page showed what securities she had in her box in 1878. On cross-examination, she testified, with reference to the first page, 'that the figures at the top in pencil she put there when she took the page out of the other book, and put it into that book; those figures in pencil were 1877 and 1878; that she did not remember at what time she did this; that it was before 1882, and was after she cut it out of the other books; * * * that she had no memorandum, except what was on that paper in the book; that some of it was written in ink, and some in pencil; that what was in ink was written when it was in the other book; that the pencil part was written after it was put in this book; that the summing up was made by her, but was not correct; that at the bottom of the page the value appeared to be as of 1871; she did not know whether it was its correct value in 1871 or 1877,' etc.; 'that the entries in her memorandum book were not reliable; that she could not tell when she made the entries upon them, or when the figures were set down; that she could not tell why she made the entries, nor why she had struck out any of them.' This book was sought to be used, not for the purpose of refreshing the memory of the witness, but was laid before the jury as independent evidence of the character and value of the securities.

There is no doubt that books of account kept in the usual and regular course of business, when supplemented by the oath of the party who kept them, may be admitted in evidence. Insurance Co. v. Weide, 9 Wall. 677; Cogswell v. Dolliver, 2 Mass. 217; White v. Ambler, 8 N. Y. 170. But whether this rule extends to memoranda made by a witness contemporaneously with the event they purport to record is open to very considerable doubt; elementary writers and courts being about equally divided upon the subject. 1 Greenl. Ev. § 437, note 3; 1 Smith, Lead. Cas. (6th Amer. Ed.) 508, 510. In New York they are held to be admissible. Halsey v. Sinsebaugh, 15 N. Y. 485; McCormick v. Railway Co., 49 N. Y. 303, 315. The cases in Massachusetts apparently favor a different view. Com. v. Fox, 7 Gray, 585; Dugan v. Mahoney, 11 Allen, 572; Com. v. Ford, 130 Mass. 64; Com. v. Jeffs, 132 Mass. 5; Field v. Thompson, 119 Mass. 151. In this court it was held in Insurance Co. v. Weide, (14 Wall. 375,) that a statement in figures of the value of certain merchandise destroyed by fire, which statement professed to be a copy of another statement contained in a book, itself destroyed in the fire, accompanied by proof that on a certain day the witness took a correct inventory of the merchandise, and that it was correctly reduced to writing by one of them, and entered in the volume burned, and that what was offered was a correct copy, was admissible in evidence, in a suit against the insurance company, to fix the value of the merchandise burned, though there was no independent recollection by the witness of the value stated. In delivering the opinion of the court, Mr. Justice Strong observed: 'How far papers, not evidence per se, but proved to have been true statements of fact at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has been many times decided that they are to be received. And why should they not be? Quantities and values are retained in the memory with great difficulty. If, at the time when an entry of aggregate quantities or values was made, the witness knew it was correct, it is hard to see why it is not at least as reliable as the memory of the witness.' This case might have been properly supported on the ground that they were entries made in the usual course of business, since, from the report of a similar case, (9 Wall. 677,) this seems to have been the character of the entries. See, also, Chaffee v. U. S., 18 Wall. 516.

In Maxwell's Ex'rs v. Wilkinson, 113 U. S. 656, 5 Sup. Ct. 691, a memorandum of a transaction which took place 20 months before its date, and which the person who made the memorandum testified that he had no recollection of, but knew it took place because he had so stated in the memorandum, and because his habit was never to sign a statement unless it were true, was held to be inadmissible. Many of the authorities are cited, but the inadmissibility of the memorandum was put upon the ground that it was made long after the transaction it purported to state. The general question of the admissibility of such memoranda as independent evidence was not, however, decided.

In Railroad Co. v. O'Brien, 119 U. S. 99, 7 Sup. Ct. 118, which was an action against a railroad company by a passenger to recover for personal injuries, a written statement as to the nature and extent of his injuries, made by his physician while treating him for them, for the purpose of giving information to others with regard to them, was held not to be admissible in evidence against the company, even when attached to the deposition of the physician, in which he swore that it was written by him, and that in his opinion it correctly stated the condition of the patient. Numerous authorities were cited upon both sides of the general question as to the admissibility of such memoranda, but the court held that the case did not require an examination of such authorities, inasmuch as it did not appear but that, at the time the witness testified, he had, 'without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection, there was no necessity whatever for reading that paper to the jury.'

We do not regard any of these cases as committing this court to the general doctrine that such memoranda are admissible for any other purpose than to refresh the memory of the witness.

But even if it were conceded that such a memorandum as that in question, made contemporaneously with the deposit of the securities, and properly...