Doe v. Lucy

• Decision Date: 06 December 1927
• Citation: 139 A. 750
• Parties: DOE v. LUCY.
• Court: New Hampshire Supreme Court

139 A. 750

DOE

v. LUCY.

Supreme Court of New Hampshire. Strafford.

Dec. 6, 1927.

Transferred from Superior Court, Strafford County; Sawyer, Judge.

Action in assumpsit by Robert Doe, administrator c. t. a. of Charles E. Hoitt (Dwight Hall, administrator de bonis non), against Anna M. Lucy. Verdict for defendant. Transferred upon plaintiff's exceptions. New trial.

Assumpsit to recover payments made by decedent as guarantor on a lease in which the defendant was named as lessee. Trial by the court; verdict for the defendant.

Upon September 17, 1908, the defendant took a lease of an apartment house in Boston, Mass., and upon September 21, 1908, Charles E. Hoitt, the plaintiff's decedent, executed upon the back of said lease a guaranty of "the true and punctual performance" by the defendant of all her obligations thereunder. In February, 1910, the defendant abandoned the premises, and thereafter the decedent was forced to pay under his guaranty, on account of rent, sums aggregating $3,680.47, for the recovery of which the present action was brought The defendant's plea was to the effect that, as between her and the decedent, she was only the nominal lessee of the premises, that the decedent was the real tenant, and that she acted throughout the whole transaction as his agent. Transferred upon plaintiff's exceptions to the exclusion and admission of the evidence. These exceptions, together with the material facts involved in their consideration, are fully stated in the opinion.

George T. Hughes and Stanley Burns, both of Dover, for plaintiff.

Horace Guild and John M. Merriam, both of Boston, Mass., and Conrad E. Snow, of Rochester, for defendant.

BRANCH, J. 1. It appeared at the trial that in 1910 three actions for rent were brought against the defendant on behalf of Isaac Weil, the lessor, by one J. Butler Studley, an attorney. In these suits one Samuel W. Forrest, an attorney, entered his appearance for the defendant. The plaintiff offered in evidence Mr. Studley's deposition in which he testified that Mr. Weil told him that Mr. Forrest brought the keys of the leased premises to his (Weil's) store and stated that he returned them on behalf of the defendant, but that he (Weil) refused to accept them. To the introduction of this testimony the defendant objected, and the ruling of the court was that it be "omitted for the time being without prejudice to your rights to offer it if you ever make it competent." To this ruling the plaintiff excepted. No further offer of this testimony was made by the plaintiff. It is unnecessary to decide whether, under these circumstances, the question of the admissibility of the testimony was squarely raised, for it is plain that the plaintiff's rights would not have been prejudiced if it had been unconditionally excluded. The offered evidence was pure hearsay and inadmissible for any purpose.

2. Subject to the plaintiff's exception, the court admitted the testimony of the defendant to the effect that the widow of the deceased, who acted for two years as the executrix of his will previous to the appointment of the plaintiff as administrator, never made any demand upon her for the payment of money. The ground of the plaintiff's objection was that "it does not seem that the present administrator c. t. a. is bound by either a statement of a former executrix or her silence as an admission on this claim." It is not necessary to decide in this case how far, if at all, a subsequent administrator is bound by the admissions of his predecessors in office, for no attempt was made to bind the plaintiff by any admission of the executrix. The testimony in question belonged to that class of evidence which is persuasive rather than probative in its effect, but which has a possible tendency to discredit the opposing party's case as a whole. Login v. Waisman, 82 N. H. 500, 502, 136 A. 134. For this purpose it was admissible.

3. Inasmuch as the plaintiff administrator did not elect to testify, the defendant was prevented by the statute (P. L. c. 336, § 27) from testifying to facts occurring in the lifetime of the deceased to which he might have testified if living. She produced, however, an account book, which she testified had been kept by her and was "the record book of transactions of the house, in receipts from the rooms and the money, disposition of the money received." This book was admitted in evidence, and the plaintiff excepted. Eleven specific entries of payments to "C. E. H." were then called to the attention of the court, aggregating $1,618.33. The smallest of these payments was $25. To the admission of these items, plaintiff also excepted.

The court based its rulings admitting the foregoing evidence upon the exception to the hearsay rule which has been established in favor of parties' account books. 2 Wig. Ev. §§ 1536 to 1561. "Generally a party could not testify at common law, but he could give in evidence his books of account supported by his suppletory oath." Snell v. Parsons, 59 N. H. 521; Eastman v. Moulton, 3 N. H. 157. This right was not affected by the passage of the statute above referred to, limiting the right of a party to testify when the opposing party is an administrator. Snell v. Parsons, supra. In this jurisdiction, however, the above rule has always been subject to the limitation that payments of money in excess of $6.67 could not be proved by account books. Bassett v. Spofford, 11 N. H. 167; Rich v. Eldredge, 42 N. H. 153, 158; Bailey v. Harvey, 60 N. H. 152, 154; Remick v. Rumery, 69 N. H. 601, 604, 45 A. 574. The defendant concedes that, by force of this limitation, the entries above referred to were inadmissible to prove payment to the deceased of the amounts therein mentioned, but argues that in this case "no effort is made to charge the decedent with these or any amounts" and that upon another issue in the case, "to wit, Did the defendant turn over rent money to the decedent?" the account in question was admissible. This position is untenable, for it is well-settled law that under the above rule account books are admissible only upon the issue of debit or credit between the parties and not upon collateral questions. Lassonne v. Boston & L. R. Co., 66 N. H. 345, 352, 24 A. 902, 17 L. R. A. 525; Bailey v. Harvey, supra; Leighton v. Sargent, 31 N. H. 119, 135, 64 Am. Dec. 323; Batchelder v. Sanborn, 22 N. H. 325; Woods v. Allen, 18 N. H. 28, 33; Little v. Wyatt, 14 N. H. 23; Woodes v. Dennett, 12 N. H. 510. It follows that the entries purporting to record payments to the decedent were improperly admitted.

This conclusion makes it unnecessary to decide whether it is still the law that money payments in excess of $6.67 cannot be proved by account books.

The account book in question was not offered or used, however, for the sole purpose of evidencing the payments above referred to. The whole book, with the exception of the first five pages, which dealt with other matters, was offered in evidence by the defendant for the avowed purpose of "showing the financial relationship between the two with reference to the premises in question," and was evidently considered by the court for this purpose, for in the findings of fact, after a statement that the testimony of certain witnesses alone would convince the court of the truth of the defendant's contention, we read as follows: "When coupled with the defendant's book of account of her stewardship, the conclusion becomes irresistible." This use of the book was improper. The law does not permit a party, otherwise debarred from testifying, to get before the court, through the medium of an account book kept by himself, his version of "the financial relationship" between him and another, or an "account of his stewardship" for another, when the existence of the stewardship itself is the vital point at issue. Such a result would be contrary to the spirit of the statute above referred to, and the account book principle, when its limitations are clearly understood, does not permit it. "The charges being made by the party, the books are received with great caution and subject to many limitations. They have been refused admission to prove the consideration of a promissory note; the delivery of goods to a third person; the delivery of...