Dodge v. Bache

• Decision Date: 19 March 1868
• Citation: 57 Pa. 421
• Parties: Dodge <I>versus</I> Bache.
• Court: Pennsylvania Supreme Court

57 Pa. 421

Dodge versus Bache.

Supreme Court of Pennsylvania.

March 10, 1868.

March 19, 1868.

March 10th 1868.

Before STRONG, READ, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius

Error to the Court of Common Pleas of Tioga county: No. 326, to January Term 1868.

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C. A. Mayer and W. H. Armstrong (with whom was I. B. Niles), for plaintiffs in error, cited on the 1st assignment, Hough v. Doyle, 4 Rawle 294; Hannay v. Stewart, 6 Watts 489; Dick v. Cooper, 12 Harris 221; Patton v. Minesinger, 1 Casey 394; 1 Greenl. Ev., §§ 113, 116.

On the 2d and 3d assignments, Heart v. Hummel, 3 Barr 414.

On the 4th assignment, Keeler v. Vantwyle, 6 Barr 250; Fisher v. Filbert, Id. 61.

H. Sherwood and C. H. Seymour (with whom was B. B. Strang), for defendant in error, cited on the 1st assignment, Salmon v. Rance, 3 S. & R. 311; Wolverton v. Commonwealth, 7 Id. 273; Hannay v. Stewart, 6 Watts 487.

On the 2d and 3d assignments, 1 Stark. on Ev. 175, 177.

On 4th assignment, Long v. Ramsey, 1 S. & R. 72; Brown v. Campbell, Id. 176; Graham v. Graham, Id. 330; Galbraith v. Black, 4 Id. 211.

The opinion of the court was delivered, March 19th 1868, by SHARSWOOD, J.

The 1st error assigned is as to the admission of the testimony of Ezra Chandler. One of the questions in the cause, if not the principal one, was whether McDougall, the agent of the defendants, had cut the slash-boards of the dam at the Marsh creek pond, by which an artificial freshet was caused in the stream below, and the plaintiff's logs were carried away and lost. It was offered to prove by Chandler that McDougall had declared that he intended to do this, before the dam was let off. It was objected to on the ground that such declaration of the agent was no part of the res gestæ, and, therefore, upon the familiar and well-settled rule of evidence, not admissible against his principal. But clearly this rule had no application. The declaration was offered not as in itself affecting the principal, but in corroboration of the other testimony in the cause that McDougall and Charles Grinnell, his workman, were seen to go to the mill together — that Grinnell soon after was observed on the dam with an axe and that he appeared to be chopping something. Now, when the question is whether a person has done a particular thing, and some evidence of it has been given, it is surely competent to show in corroboration that he had avowed his purpose beforehand. His principals would not have been affected by his mere intentions unexecuted. But to confirm other evidence of the act itself, his declarations were unquestionably admissible — not as the declarations of an agent but of the individual whose act was in question. We think, therefore, that there was no error in the admission of this evidence.

We will consider the 2d and 3d assignments of error together. It became material to show that Charles Grinnell, who was said to have been seen on the dam with an axe chopping something some time in December 1855, was not then in the employment of McDougall. For this purpose Grinnell himself was called and testified that he went to work for a Mr. Dickinson in the fore part of November 1855, and continued in his service until February 1856. Dickinson was then called and stated that Grinnell had worked for him at different times, but he could not recollect when or how long. It was then offered to show by the witness that, having refreshed his recollection from his own book and entries therein in his own handwriting, he believes that Grinnell worked for him between the said dates: this for the purpose of fixing the time when Grinnell worked for him and in corroboration of Grinnell's testimony. This was objected to because it was belief and not the recollection of the witness, which was offered. The court rejected this...