Kirchner v. Laughlin

• Decision Date: 19 January 1890
• Parties: KIRCHNER v. LAUGHLIN.
• Court: New Mexico Supreme Court

23 P. 175

5 N.M. 365, 1890 -NMSC- 002

KIRCHNER v. LAUGHLIN.

Supreme Court of New Mexico

January 19, 1890

Appeal from the district court, Santa Fe county; REEVES, Judge.

Gildersleeve & Preston, for appellant.

Catron Knaebel & Clancy and Thos. Smith, for appellee.

WHITEMAN J.

This is an action in assumpsit brought by August Kirchner appellee, to recover damages for the breach of a contract alleged to have been made by the plaintiff with the appellant, Saron N. Laughlin, and Joseph H. Wiley, on the 9th day of August, A. D. 1879, the contract having been signed and sealed by Wiley for himself and as the agent of Laughlin. Under this contract, Kirchner delivered to Wiley 2,000 ewes which Laughlin and Wiley were to care for for the period of 5 years, and to pay and deliver to Kirchner annually, for the use of the same, 500 wethers and 500 fleeces of wool, and at the end of 5 years Laughlin and Wiley were to deliver to Kirchner 200 ewes of like age, quality, and condition as those which should be delivered to them. Some time later, 500 additional ewes and 23 rams were delivered by Kirchner upon an unsealed written agreement, dated September 14, A. D 1881, which was signed in the name of Laughlin by Wiley as agent, and also for himself. This agreement provides, in effect, that the original contract should be enlarged so as to include the additional ewes and rams, under the same terms and conditions as were specified in the original contract. The plaintiff prayed damages for the sum of $3,500, with interest and cost of suit. The defendant, Laughlin, interposed the pleas of non assumpsit and non est factum to the declaration, denying his signature to the instrument in writing sued on, and the authority of any one to execute it for him. The case was tried at the July term, A. D. 1885, of the district court of Santa Fe county, at which trial the court instructed the jury to return a verdict for the defendant, Laughlin. The plaintiff then carried the case by writ of error to the supreme court, which court, at the January term, 1888, reversed the judgment of the district court, and directed a new trial, (17 P. 132,) which was had at the August term, A. D. 1888, and the plaintiff recovered a judgment in the sum of $3,200, and the defendant brings the case upon appeal to this court.

The appellant insists that the district court erred in permitting Harry S. Clancy, a witness in behalf of the appellee, to testify as to what William Breeden had testified to upon the former trial of the cause. The witness Clancy was the official stenographer of the court, and, upon being sworn as a witness, testified that he acted as stenographer upon the former trial; that upon that trial William Breeden was sworn and examined as a witness in behalf of plaintiff; and, upon being further interrogated, the witness Clancy testified as follows: " Question. Where is William Breeden? Answer. I am informed -- I have seen a letter written by Mr. Breeden within the last two weeks from the state of Ohio. Q. State whether or not, on the former trial of this case, the paper I now hold in my hand was identified by Col. Breeden under oath. A. From my memorandum made on that paper it appears that it was introduced in evidence upon the former trial of this cause as an exhibit. Q. State whether or not the memorandum in pencil, 'A. H. S. C.,' is an original note made by you as stenographer on this exhibit, when introduced in evidence. A. It is. Q. Are you acquainted with the handwriting of William Breeden? A. I am. Q. State, if you know, in whose handwriting the body of this instrument is written. A. It is in the handwriting of Col. William Breeden. Q. Do you recollect, in substance, what Col. Breeden testified to as to the signatures to this paper? A. I am able to testify on that point, after refreshing my memory by referring to the original short-hand notes. Q. Have you looked at these notes? A. Yes, sir. Q. State, in substance, what Col. Breeden testified then on that subject. A. Col. Breeden testified that this paper was in his handwriting, and that it was executed by Joseph Wiley, for himself and for Saron N. Laughlin, and also that the additional agreement on the last page was signed by Mr. Wiley for himself and for Mr. Laughlin."

The testimony of the witness Clancy was permitted to go to the jury, not withstanding the objection of the defendant Laughlin. It was shown upon the trial by the testimony of M A. Breeden, who is the brother of the absent witness, William Breeden, that he, William Breeden, his wife and family, resided in the town of Santa Fe, N. M.; that he left the territory of New Mexico in July, and that the witness believed him to be in the state of Ohio at that time; that he had received a letter from him within a week or 10 days previous to that time; that he could not state positively whether his brother was on the road or in the territory, but that his understanding was that he was in the state of Ohio, and he did not know when he was expected to return. In the decisions of the courts of the several states that have passed upon the question of the admissibility of the evidence of a witness given upon a former trial of a case, there is great lack of uniformity, and the law is far from being settled. Several courts have held that, where a witness is beyond the jurisdiction of the court, evidence is admissible of his testimony given at a former trial between the same parties, with reference to the same subject-matter. Magill v. Kauffman, 4 Serg. & R. 317; Clinton v. Estes, 20 Ark. 235; Schearer v. Harber, 36 Ind. 536; Long v. Davis, 18 Ala. 801; Wilder v. St. Paul, 12 Minn. 192, (Gil. 116;) People v. Devine, 46 Cal. 45; 1 Greenl. Ev. § 163. It is held, on the contrary, that where the residence of the witness is known, his deposition should be taken, unless it be shown that the circumstances of the case are such as to prevent the taking of his deposition. Wilbur v. Selden, 6 Cow. 164; Gerhauser v. Insurance Co., 7 Nev. 174; Berney v. Mitchell, 34 N. J. Law, 341; Le Baron v. Crombie, 14 Mass. 234; Bergen v. People, 17 Ill. 427. There would seem to be less force in the position maintained in the cases first cited, at the present time, than there may have been a quarter of a century ago. The imperfect mail facilities and slow methods of travel which existed then made the taking of a deposition of a witness residing or being in another state difficult and uncertain of accomplishment, and consumed a great deal of time; whereas, under the fast mail system and rapid railroad communication with all parts of the country maintained at the present day, the taking of a deposition of a witness in another jurisdiction is accomplished with comparatively little expenditure of time, trouble, or money. In Burton v. Driggs, 20 Wall. 133, cited by the appellee, ...