Hamsher v. Kline

• Decision Date: 19 March 1868
• Citation: 57 Pa. 397
• Parties: Hamsher <I>versus</I> Kline.
• Court: Pennsylvania Supreme Court

57 Pa. 397

Hamsher versus Kline.

Supreme Court of Pennsylvania.

March 6, 1868.

March 19, 1868.

March 6th 1868.

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

Error to the District Court of Philadelphia: No. 115, to January Term 1868.

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A. M. Burton, for plaintiff in error.—As to the admission of the part of Green's deposition which was objected to, he referred to Muirhead v. Fitzpatrick, 5 W. & S. 508; Wilson v. Davis, Id. 523; Urket v. Coryell, Id. 84; Evans v. Mengel, 1 Barr 82; Gilchrist v. Rogers, 6 W. & S. 488; Miller v. Cresson, 5 Id. 301.

T. K. Finletter and W. L. Hirst, for defendant in error, referred to 1 Greenl. Ev., § 575; 2 Id., § 295; Piggott v. Holloway, 1 Binn. 436.

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

In the court below this was an action in which the plaintiff claimed that the defendant, as his attorney, had undertaken to collect a mortgage held by him on a farm and tract of land in the state of Delaware; that contrary to his duty, at the sheriff's sale under the mortgage, he had concealed from the bidders a material fact, which would have enhanced the price; that he had become the purchaser himself at the sale, for a sum much below what it would otherwise have brought; and that he had not accounted for the purchase-money. On the other hand the defendant alleged, and gave evidence tending to show, that he had not been employed by the plaintiff as his attorney, but as his agent merely, and without compensation; that he had engaged counsel in Delaware to sue out the mortgage; that in company with the plaintiff he had attended the sale; that the fact, the concealment of which from the bidders is now complained off, was communicated to the plaintiff, and that they agreed to buy the property in partnership. He alleged further that the premises were purchased under this arrangement by him; and that he had paid his half of the bid in full; and that the attorney of record settled and receipted on the sheriff's docket for the whole sum. The sheriff's deed to the defendant Kline was dated November 24th 1857, and the settlement on the sheriff's docket November 23d 1857. On December 10th 1857 Kline bought of the plaintiff his interest in the premises; a receipt for the agreed price under the hand and seal of Hamsher was given in evidence; and it was also shown that in another proceeding, four years afterwards, in which Hamsher was examined as a witness, he had testified as follows: "I once owned this land in Delaware; it was sold by the sheriff; I have no interest in it now; I had an interest in it after the sheriff's sale; Mr. Kline bought it for himself and myself." This statement of the case is all that is necessary to explain the assignments of error, with which alone we have now anything to do. The 1st and 2d errors assigned are to a part of the deposition of John Green, which was permitted by the court to be read in evidence. Green was a witness for the plaintiff, and in his re-examination in chief had testified that he had an interview with the defendant, at which he had made a certain statement and exhibited certain papers. The defendant asked him on cross-examination to state all that Mr. Kline said at the time these papers were exhibited. The plaintiff's counsel objected to the answer, because the plaintiff was not present, and because the declarations were post litem motam. But it is too plain for argument, both on reason and authority, that the defendant had a right to all that had taken place at the same interview, of which he had given only a part, whether it was ante or post litem motam. Unless the whole of what is said at the same time is received and considered, the true meaning and import of the part cannot be ascertained: 1 Greenl. on Ev., § 202. There was no error therefore in the admission of this evidence.

The 3d error assigned is in admitting in evidence the instrument of writing dated August 20th 1857. There was a subscribing witness, who was examined and said, on being shown the paper, "This is my signature as a witness;" but on cross-examination he added, "I do not know whether the plaintiff is the person who signed the writing in my presence." It is well settled that if there is any evidence, however slight, tending to prove the formal execution of a deed, it is sufficient to entitle it to go to the jury: 2 Greenl. Ev., § 295. Few men can swear positively to the sealing and delivery of an instrument after any considerable time: Piggott v. Holloway, 1 Binn. 442. If, as often happens, the party is a stranger to the subscribing witness, the same difficulty arises. Identity of name is sufficient in the first instance as presumptive evidence of identity of person: 3 Phillips on Ev. 1301, 1302, Cowen & Hill's ed.; Atchison v. McCulloch, 5 Watts 13. In the absence of countervailing proof the law presumes...