Fitch v. Martin

• Decision Date: 25 June 1909
• Docket Number: 15,865
• Citation: 122 N.W. 50,84 Neb. 745
• Parties: F. W. FITCH, APPELLEE, v. EUCLID MARTIN, ADMINISTRATOR, APPELLANT
• Court: Nebraska Supreme Court

122 N.W. 50

84 Neb. 745

F. W. FITCH, APPELLEE, v. EUCLID MARTIN, ADMINISTRATOR, APPELLANT

No. 15,865

Supreme Court of Nebraska

June 25, 1909

REHEARING of case reported in 83 Neb. 124. Rehearing denied.

Motions for rehearing OVERRULED.

OPINION

PER CURIAM.

Each party to this record requested a reversal of the judgment of the district court, and it was not thought necessary to determine every question presented in their respective briefs. Each party asks for a rehearing to the end that alleged errors in our opinion may be corrected and certain assignments and cross-assignments of error considered.

1. Plaintiff suggests that we determine the admissibility of the testimony of Walker, Clarkson, Bastedo, Haller, Walcott and Judge Estelle concerning certain transactions with Major wherein Fitch was not known. Walker was a real estate broker. Clarkson represented Major as his attorney when the latter was arrested on a charge of embezzlement. Judge Estelle was counsel for the deceased in a lawsuit, and Haller represented the defendant in said action. Bastedo is a builder and contractor, and constructed two houses in Omaha for Major, and also knew about the transfer of stock in the Delphine Mining Company to the deceased. Walcott was associated with said mining company as its attorney, while Major was interested therein, and also appeared for him in a lawsuit. All of said transactions occurred during the time plaintiff claims that he was employed by the year as Major's attorney.

Plaintiff relies in some degree upon proof of continued professional services for the deceased to establish an annual renewal of the contract he claims to have made years before with Major to serve him professionally for a stipulated sum per annum. The evidence upon the main issue is not conclusive, and competent evidence of collateral facts or circumstances reasonably tending to establish the probability or improbability of the fact in issue, if not too remote, is relevant. Farmers' State Bank v. Yenney, 73 Neb 338, 102 N.W. 617; Blomgren v. Anderson, 48 Neb 240, 67 N.W. 186. It is largely within the discretion of the trial court to say what proof of collateral facts is or is not too remote in a particular case. In Stevenson v. Stewart, 11 Pa. 307. defendant asserted that his signature had been forged to the bill in suit. The plaintiff was the administrator of the deceased payee. It was held competent for plaintiff, in rebuttal, to prove that about the date of the note defendant had borrowed money from other persons. Mr. Justice Bell reasons that the competency of a collateral fact to be used as the basis of a legitimate argument is not to be determined by the conclusiveness of the inference it may furnish with reference to a litigated fact, but that, if it tends in a slight degree to elucidate the inquiry, or to reasonably assist in a determination probably founded on truth, it should be received. See, also, Gillet, Indirect and Collateral Evidence, sec. 51. It does not require argument to demonstrate that, if Fitch were employed by the year as Major's attorney, Major Clarkson, Judge Estelle and Mr. Walcott-would not ordinarily, during that period, be attending to Major's litigation. Of course the inference would not be conclusive; the circumstances would be subject to explanation, and different minds might honestly draw diverse conclusions from the facts stated.

We are not inclined to substitute our judgment for that of the trial court in passing upon the relevancy of this collateral evidence. If the case were on trial before us, we would not receive the testimony of Mr. Haller, because it merely corroborates Judge Estelle upon an admitted fact. The transactions proved by Bastedo did not necessarily involve the services of a lawyer, and the testimony of that witness with propriety might be excluded. So much of Walker's testimony as did not refer to the examination of abstracts of title for Major, or contradict in some manner plaintiff's testimony with reference to the services he claims to have rendered the deceased with reference to specific tracts of land, might, with profit, be excluded. Upon the next trial of this case the evidence may assume such a form as to make relevant some of the evidence that now seems irrelevant, but sufficient has been said to guide the trial court in the disposition of this feature of the case.

2. It is urged that the question referred to in the second subdivision of the opinion was not answered by the witness. The opinion does not so state. The trial court did not sustain defendant's objections to the interrogatory. The question was not withdrawn, and the ruling referred to permitted the witness to answer subsequent questions on the assumption that the services testified to were performed for Major. Questions like the following were thereafter propounded: "You may now answer the original question with reference to lots in Credit Foncier addition," etc. The interrogatories referred back to the quoted question, and we remain of the opinion that error was committed in the examination of plaintiff.

It is argued that plaintiff had been cross-examined upon all of the entries in the memorandum books, which were received in evidence over defendant's objections. We have been unable to find any cross-examination with reference to the following entry in the 1894 memorandum: "Monday 17. Agreement with Major to reduce contract services to $ 400 per year to begin Jan. 1, '95." To the suggestion that defendant's counsel should have severed their objections so as to refer only to the entries concerning which plaintiff had not been cross-examined, it is sufficient to say that plaintiff's offer, although purporting to be several as to each item, was omnibus in character. Opposing counsel would have been compelled to check each item in several books purporting to record as many years' transactions, if they were to direct their objections specifically to the incompetent or irrelevant evidence included in the offer. The law does not place that burden upon the cross-examiner. It was the duty of plaintiff's counsel to include within his offer only competent evidence. If he did not, the objection should have been sustained. Hidy v. Murray, 101 Iowa 65, 69 N.W. 1138; Hamberg v. St. Paul Fire & Marine Ins. Co., 68 Minn. 335, 71 N.W. 388.

3. Defendant argues that the evidence does not justify instruction numbered 9, which, in substance, informs the jurors, that, if they find from the evidence that about August 17, 1896, Major indorsed his name on a certain note and delivered it to plaintiff to be applied on the claim in suit, the transaction would toll the statute of limitations. It is shown by the testimony of Karbach that some time preceding July, 1906, he heard a conversation in plaintiff's office between...