Kier v. Hill

• Decision Date: 03 December 1901
• Citation: 8 Idaho 111,66 P. 931
• Parties: KIER v. HILL
• Court: Idaho Supreme Court

66 P. 931

8 Idaho 111

KIER v. HILL

Supreme Court of Idaho

December 3, 1901

EVIDENCE-HEARSAY.-The declaration of one who purchases mortgaged property made to a third party to the effect that the debt secured by such mortgage has been paid, is not competent evidence against the owner and holder of the mortgage debt when such declaration is made in his absence.

(Syllabus by the court.)

APPEAL from District Court, Boise County.

Affirmed, with costs to the respondent.

Hawley & Puckett, for Appellants.

We urge that Mr. Halveston's testimony was proper, and the objections thereto were not well taken. Plaintiff's deposition shows that he regarded Pierce as his agent in this whole matter; he states in answer to the second interrogatory of his deposition that he received the note and mortgage in question from Pierce and gave him as consideration therefor the sum of $ 1500. The respondent must, we urge, if this evidence of Kier is taken, be considered as the agent of the latter in this matter, so far as permitting his statements in regard thereto to be given in evidence. It matters not what the truth of the matter may be, so far as the agency is concerned, or what appellant's theory of his connection with the matter is, we can, if the evidence of the plaintiff shows him to have been an agent of the plaintiff, then introduce his statements testified to by Halveston, as they were statements made during the continuance of his authority and within its scope, and such statements would be competent evidence against his principal. (1 Am. & Eng. Ency. of Law 697.)

J. H Richards and C. C. Cavanah, for Respondent.

The testimony of Halveston and Teters should not have been admitted, or, if admitted should have been stricken out on respondent's motion. It did not appear that any effort had been made to secure the attendance or depositions of Parish and Pierce, or that it was impossible to secure their attendance or depositions. That hearsay evidence of declarations made by Parish and Pierce in favor of their own interest and for the purpose of contradicting a written instrument, should be excluded, is so well settled that we need cite but few authorities: 15 Am. & Eng. Ency. of Law, 310, and cases there cited; Rogers v. Schulenburg, 111 Cal. 281, 43 P. 899; Gore v. Canada Life etc. Co., 119 Mich. 136, 77 N.W. 650; Gentry v. Field, 143 Mo. 399, 45 S.W. 286; Norfolk Ry. Co. v. Reeves, 97 Va. 284, 33 S.E. 606; Shamp v. White, 106 Cal. 220, 39 P. 526, 537; Walton v. Cheseborough, 57 N.Y.S. 687, 39 A.D. 665; Eyermann v. Piron, 151 Mo. 107, 52 S.W. 229; Gulf etc. Ry. Co. v. Bough (Tex. Civ.), 42 S.W. 245; Greenleaf on Evidence, sec. 149; Abbott's Trial Evidence, 799.

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

This action was commenced in the district court by the respondent, as plaintiff, to recover a debt secured by a mortgage executed by one J. C. Hill, mortgaging the Friday mining claim as security for a note given by said Hill to J. S.D. Manville and R. F. Cooke, December 24, 1896, for the sum of $ 500, and which note and mortgage were afterward assigned to the respondent. The cause was submitted to the court upon the evidence of both parties. The findings of the court were made in favor of the plaintiff, and judgment therefor entered, granting the relief demanded by respondent in his complaint. Appellants moved for a new trial, principally upon the ground that the evidence was not sufficient to sustain the findings and judgment of the court; but this motion was denied, and appellants appeal from the judgment, and also from the order denying a new trial.

At the trial, the mortgage and note were introduced in evidence without objection, and also the deposition of the plaintiff taken in St. Louis, was read, in which plaintiff testified that he received the said note and mortgage from one C. L. Pierce, in consideration for money loaned by him to said Pierce, to wit, the sum of $ 1500, at the time he received the mortgage. Plaintiff testified that neither said...