Dorchester Trust Co. v. Casey

• Citation: 167 N.E. 915
• Parties: DORCHESTER TRUST CO. v. CASEY et al.
• Decision Date: 27 September 1929
• Court: United States State Supreme Judicial Court of Massachusetts

167 N.E. 915

DORCHESTER TRUST CO.

v.CASEY et al.^*

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 27, 1929.

Exceptions from Superior Court, Suffolk County; J. Walsh, Judge.

Action by the Dorchester Trust Company against Thomas J. Casey and others. Verdict for defendant Casey, and plaintiff brings exceptions. Exceptions sustained.

1. Evidence k148-Testimony as to telephone conversation is admissible, if identity of person using telephone is established.

To render testimony as to telephone conversation admissible, there must be evidence as to identity of the person talking over the telephone.

2. Evidence k148-Evidence of telephone conversation between plaintiff's attorney and plaintiff was inadmissible, where identity of person with whom attorney talked was not established.

Testimony as to telephone conversation between plaintiff's attorney and plaintiff held inadmissible, where there was nothing to indicate the identity of the person with whom plaintiff's attorney talked, or to show that the person present with attorney recognized voice.

3. Evidence k148-Statement of deceased that plaintiff's attorney telephoned plaintiff held incompetent, where there was no evidence of deceased's knowledge that attorney had secured proper telephone connection (G. L. c. 233, s 65).

Statement of deceased to witness that plaintiff's attorney telephoned plaintiff in deceased's presence held not admissible as declaration of deceased person, under G. L. c. 233, s 65, providing that such declaration shall not be excluded as hearsay, if made in good faith before commencement of action on personal knowledge of declarant, where evidence merely showed that deceased knew attorney had called plaintiff's place of business, but did show that he knew whether proper telephone connection had been secured.

4. Evidence k148, 258(1)-Telephone conversation between attorney and plaintiff's place of business was inadmissible on question whether plaintiff extended time for payment of bond, where there was no showing of attorney's authority, or that conversation was with authorized person.

Evidence of telephone conversation between plaintiff's attorney and plaintiff's place of business was immaterial, on question whether plaintiff granted extension of time for payment of bond, where it was not shown that the conversation was had with any authorized person, or that attorney had authority.

5. Principal and surety k105(1)-Extension of time to debtor must be founded on enforceable contract, to release surety.

Mere indulgence or delay by creditor in demanding payment from principal debtor will not discharge surety; but, to accomplish surety's discharge, extension of time granted debtor must be founded on enforceable contract, supported by valid consideration.

6. Attorney and client k81-Attorney cannot contract for extension of time of payment on obligation due client without special authorization.

Attorney must have special authorization from client before he is empowered to enter into enforceable contract on behalf of his client to extend time of payment on obligation due client, since such power is not ordinary incident to relationship of attorney and client.

7. Principal and surety k105(2)-Surety on bond held not discharged by agreement of creditor's attorney to extend time of payment, where attorney acted without special authorization, and his act was not ratified.

Extension of time granted by creditor's attorney to principal debtor for payment of statutory bond, where attorney was not specially authorized, and his act was not ratified, did not operate to discharge surety, since creditor was not bound.

8. Principal and surety k105(2)-Surety is not released by extension of time to debtor by creditor's agent, where agent's act is unauthorized and not ratified.

If creditor's agent does not have authority to extend time for payment of obligation, and his act in extending time is not ratified, such extension does not release surety.

9. Evidence k283-Unauthorized statement of plaintiff's attorney extending time for payment of bond was not admissible, after attorney's death, in view of attorney's want of authority (G. L. c. 233, s 65).

In action against principal and sureties on bond, statement of plaintiff's attorney, since deceased, that plaintiff was willing to extend time of payment was not admissible, as declaration of deceased person, under G. L. c. 233, s 65, providing for admission of hearsay declarations of deceased persons in certain cases, where attorney had no authority to bind plaintiff.

10. Evidence k283-Hearsay statement of deceased is admissible only if declarant, if living, might have testified as to substance of declaration (G. L. c. 233, s 65).

Declaration of deceased person is admissible, under G. L. c. 233, s 65, permitting admission in evidence of hearsay statements of deceased persons, made in good faith, before commencement of action, on personal knowledge of declarant, only if declarant, if living, might have testified as to substance of declaration.A. W. Wunderly, of Boston, for plaintiff.

M. C. Kelleher and Marion E. Hughes, both of Boston, for defendant.

CROSBY, J.

This is an action of contract against the principals and sureties on a joint and several statutory bond given by the defendants to the plaintiff for the purpose of dissolving an attachment on real estate made in a former action against the principals. The defendants Cerussi and Gradone were the principals named in the bond, and the defendants Johnson and Casey were the sureties. The judgment in the former action on which the bond to dissolve the attachment was given has not been satisfied either in whole or in part. Pending negotiations in the former action, one Gaffney, attorney for the plaintiff, had died. After the commencement of, but before the trial of, the present action, Cerussi died. The defendant Johnson defaulted when called for trial, the defendant Gradone was in bankruptcy and did not appear, and the trial proceeded against the defendant Casey alone. Among other defenses, Casey pleaded that the plaintiff, by its agents and attorneys, entered into an agreement with the principal Cerussi, whereby the plaintiff agreed to extend for a definite time the fulfillment of the obligation of Cerussi on the bond, and that thereby he, as surety, was discharged. The jury returned a verdict for the defendant. The case is here on the plaintiff's exceptions to the admission of certain evidence, and to the refusal of the trial judge to grant two requests for instructions to the jury. The plaintiff expressly waived its exception to the denial of its motion for a directed verdict.

[1][2] 1. The first exception relates to the admission of testimony of Casey that Cerussi told him that Gaffney telephoned in his presence to the plaintiff. The defendant contends that this testimony was admissible under G. L. c. 233, § 65, as a declaration of a deceased person. In this commonwealth it has been held that when a conversation over a telephone is otherwise admissible, it may be admitted in evidence when the witness testifies that he recognized the voice of the person with whom he was talking. Lord Electric Co. v. Morrill, 178 Mass. 304, 306, 307, 59 N. E. 807. To render such testimony admissible there must be evidence as to the identity of the person who talked over the telephone. Commonwealth v. Harris, 232 Mass. 588, 591, 122 N. E. 749;Morrison v. Tremont Trust Co., 252 Mass. 383, 389, 147 N. E. 870;Commonwealth v. Gettigan, 252 Mass. 450, 451, 148 N. E. 113;A. T. Stearns Lumber Co. v. Howlett, 260 Mass....