Jameson v. First Sav. Bank & Trust Co. of Albuquerque De Otero v. Bennet

• Decision Date: 28 February 1936
• Docket Number: No. 4105.,4105.
• Citation: 55 P.2d 743,40 N.M. 133
• Court: New Mexico Supreme Court
• Parties: JAMESON et al.v.FIRST SAVINGS BANK & TRUST CO. OF ALBUQUERQUE et al.DE OTEROv.BENNET et al.

40 N.M. 133

55 P.2d 743

JAMESON et al.

v.FIRST SAVINGS BANK & TRUST CO. OF ALBUQUERQUE et al.DE OTERO

v.BENNET et al.

No. 4105.

Supreme Court of New Mexico.

Feb. 28, 1936.

Appeal from District Court, Bernalillo County; Joseph L. Dailey, Judge.

Receivership proceeding by Mrs. Corinne Jameson and others against the First Savings Bank and Trust Company of Albuquerque, New Mexico, and another, wherein L. C. Bennet was appointed receiver of the bank, against whom Josefita M. de Otero, executrix of the last will and testament of Eduardo M. Otero, deceased, filed a claim. From a judgment of dismissal, the executrix appeals.

Affirmed.

Direct testimony is not necessary to establish agent's authority, if, from attending circumstances, authority may be implied.

Marron & Rogers, of Albuquerque, for appellant.

John F. Simms and Augustus T. Seymour, both of Albuquerque, for appellees.

HUDSPETH, Justice.

This is an appeal by Josefita M. de Otero, executrix of the last will and testament of Eduardo M. Otero, from the judgment dismissing her petition for an order requiring Lester Cooper and W. H. Powell, coreceivers of the First Savings Bank & Trust Company, to pay to her dividends on a claim allowed to the estate of Eduardo M. Otero, deceased. The trial court decided that an assignment of the claim executed by Raymond R. Ryan, the attorney of the executrix, was valid.

The court found:

1. Raymond R. Ryan, a member of the bar of the Supreme Court of New Mexico, was employed by Josefita M. de Otero, executrix of the estate of Eduardo M. Otero, as attorney for the executrix, and conducted the legal matters of the estate for the executrix from the time the estate was opened until the death of Judge Ryan on the 3d day of June, 1934.

2. That, during the time he was the attorney for the estate, Judge Ryan conducted many important matters both in court and in the matter of advising and counseling the executrix about the affairs of the estate, and the executrix relied upon his advice and instructions as her attorney.

3. At the time of the failure of the First Savings Bank & Trust Company of Albuquerque, N. M., the estate of Eduardo Otero had a deposit of $28,866.91 in that bank; the executrix failed to prove up her claim against the receivers for the deposit before the 31st of December, 1933, although notified by the receivers to do this, and thereafter the time was extended, and in February, 1934, Judge Ryan proved the claim, signing the name of the executrix by himself as attorney, verified it and received a receivers' certificate of proven claim in that amount which he retained among the files of the estate in his office.

4. Judge Ryan received in February, 1934, and in April, 1934, checks to the executrix for 10 per cent. dividend, indorsed them in the name of the executrix and deposited them in the account of the executrix at the Albuquerque National Trust & Savings Bank.

5. In the latter part of April, 1934, Mr. Charles Mann was purchasing claims against the First Savings Bank & Trust Company and approached Judge Ryan to purchase the claim of the Otero estate; Judge Ryan told him he had no authority to sell the estate's claim at that time, but would see and communicate with the executrix about the matter and would make an investigation touching the probable value of the claim in the meantime; about a week later Mr. Mann saw Judge Ryan, who stated that he had not yet heard from the executrix, Mrs. Otero, but that he had asked her to come in from Los Lunas to Albuquerque and go over the matter with him.

6. Judge Ryan kept in his own handwriting on his desk in his office at Albuquerque a daily memorandum book, in which it was his regular custom to make entries of important matters transpiring during each day.

7. That, on the 11th day of May, 1934, at 11:11 a. m. Judge Ryan called up the executrix at Los Lunas on the telephone, and she gave her assent to a sale by him for her of the receivers' certificate for 25 cents on the dollar, which with the 5 per cent. originally withdrawn and two dividends of 10 per cent. received by the executrix aggregated a 50 per cent. liquidation of the claim.

8. After talking to the executrix on the telephone, Judge Ryan called up Mr. Mann shortly before lunch on the 11th of May, 1934, and requested that Mr. Mann meet him between 1:30 and 2 that afternoon, at which time Judge Ryan assigned the certificate “Josefita M. de Otero, Executrix, by R. R. Ryan, attorney,” leaving the name of the transferee blank, received the consideration of 25 per cent. and delivered the certificate to the agent of the Albuquerque Investment Company and W. T. Morrow, they having paid for the same as follows: Check of George Savage for Albuquerque Investment Company, $6,750; check of John F. Simms, trustee for W. T. Morrow, $466.73, total-$7,216.73, which was 25 per cent. of the face value of the certificate as agreed.

9. Judge Ryan immediately indorsed the checks and placed them in the account of the executrix in the Albuquerque National Trust & Savings Bank.

10. Judge Ryan, acting in the matter as attorney for the executrix, had full authority and consent of and from the executrix to make the sale and indorsed the certificate as the agent of the executrix.

Appellant presents three questions for review: First, the question whether the court erred in finding that Judge Raymond R. Ryan had express authority to assign the claim of the Otero estate; second, whether the court erred in overruling the appellant's objections to the admission in evidence of the diary of Judge Ryan; and, third, whether the court erred in admitting in evidence the alleged declarations of Judge Ryan to the witness Charles Mann.

[1] The questions as to rulings on evidence may conveniently be first considered. The first ground of objection to the admission in evidence of the memorandum book or diary referred to in finding No. 6, quoted above, was that entries in private diaries come within no exception to the hearsay rule. This memorandum book was a part of the office records of Judge Ryan and in daily use. The entry in question was made in the regular and customary course of his business; it was not a mere private diary. The entry seems to fall within the rule laid down in Fisher v. Mayor, 67 N.Y. 73: “There is no absolute duty resting upon an attorney to make such an entry, but this is not essential, it is sufficient if the entry was the natural concomitant of the transaction to which it relates, and usually accompanies it. (1 Green. Ev., § 115; Leland v. Cameron, 31 N.Y. 115.)”

3 Wigmore on Evidence (2d Ed.) p. 272, § 1523, states: “It would probably exclude, for instance, a diary of doings kept merely for one's personal satisfaction; but it would not exclude any regular record that was helpful, though not essential or usual in the same occupation as followed by others.”

The following appears in 2 Nichols Applied Evidence, p. 1957: “Entries part of res gestæ. Entries in books kept by third persons, not parties to the suit, are admissible after the death of the party making the entries, where the entries are contemporaneous with the principal fact sought to be proved and form a link in a chain of events, and are a part of the res gestæ.”

In Radtke v. Taylor, 105 Or. 559, 210 P. 863, 870, 27 A.L.R. 1423 the court said: “It would be difficult by any course of logical reasoning to declare that the shopbook rule is recognized in this state and at the same time say that section 790, Or. L., affects books of accounts when used under the shopbook rule. Section 790, Or. L., traces its origin to a source entirely separated from the shopbook rule. The general rule is that entries of a third person of transactions between such third person and others not parties to the litigation, or one of the parties litigant, are not admissible because they are hearsay and res inter alios acta; but, under one of the exceptions to this general rule, entries against the interest of the person making them, the entrant being dead, are admissible. 2 Enc. of Evi. 667-670. Another exception to the hearsay prohibition recognized by the common law was the established doctrine which permitted the reception of written entries made by deceased persons in the usual course of professional or official business or in the discharge of some duty. This doctrine rests upon its own basis, and has its own history. It is treated by text-writers as a rule which is separate and apart from the shopbook rule, and, although these two rules have points of similarity, in that each possesses some of the same features, yet neither rule is connected with or dependent upon the other. There was a good reason for the enactment of section 790, Or. L., and that reason is found in the fact that it was the plain purpose of the Legislature to codify the rule governing entries of third persons against interest, and especially to limit the scope of the common law rule governing entries made by deceased persons in the course of professional or official business, or in discharge of some duty, as that rule was applied in America.”

The Supreme Court of New Hampshire, in Lebrun v. Boston & M. R. R., 83 N.H. 293, 142 A. 128, 132, stated:

“To qualify an entry under the exception to the hearsay rule, there must be a necessity for its admission as evidence, and the circumstances under which it was made must be such as to guarantee that the statements therein are fairly trustworthy. Roberts v. Claremont Power Co., 78 N.H. 491, 494, 102 A. 537; 3 Wig. Ev. § 1420 et seq. The necessity principle is satisfied by proof of the death of the entrant. 3 Wig. Ev. § 1521; Roberts v. Claremont Power Co., supra. The circumstantial trustworthiness of the report is supported by the fact that the examination, and the entry thereof, were made in the regular course of the business he had undertaken to perform and for the accuracy and truthfulness of which he assumed responsibility; there being an absence of evidence...