Peck v. Pierce

• Decision Date: 09 September 1893
• Court: Connecticut Supreme Court
• Parties: PECK v. PIERCE et al.

28 A. 524

63 Conn. 310

PECK

v. PIERCE et al.

Supreme Court of Errors of Connecticut.

Sept. 9, 1893.

Appeal from superior court, Fairfield county; Prentice, Judge.

Action by Edward H. Peck, administrator, against Alexander Milne. Defendant having died pending the suit, William B. Pierce and others, his executors, were substituted as defendants. From a judgment for defendants, plaintiff appeals. Reversed.

S. Fessenden and G. A. Carter, Jr., for appellant.

E. L. Scofield and C. L. Reid, for appellees.

TORRANCE, J. In 1886, Alexander Milne made and delivered to E. N. Peck a note, of which the following is a copy: "Stamford, Conn., March 26th, 1886. For value received, two years after date I promise to pay to E. N. Peck or order two thousand dollars, with interest Alexander Milne." Before suit was brought upon the note, Mr. Peck died, in January, 1890, and the note was found uncanceled among his papers, having upon it the following indorsements: "Rec'd Mch. 26th, '87, interest, $120." "Rec'd April, '88, interest, $120." "Rec'd Mch. 26th, '89, interest, $120." In April, 1890, the administrator of Mr. Peck brought suit against Mr. Milne on the note. The present suit is a continuation of the suit then brought, Mr. Milne having died in April, 1891, during its pendency, and is defended by the executors of Mr. Milne. The only question in issue was whether or not the note had been paid by Mr. Milne in his lifetime. The case was tried to the court, and the only evidence given related to this issue. The defendants claimed that the note was given as part of the consideration upon a sale of real estate in the city of New York made by Peck to Milne for the price of $30,000; that this price was paid by Milne's assuming certain mortgages upon the property, amounting to $20,000, by his transferring to Peck a mortgage upon another piece of real estate for $8,000, and by giving the note in suit; that on May 7, 1887, Milne paid the note by delivering to Peck, who received the same in full payment of the note, a check for $1,000, which was paid in due course, and a note for $1,000, which was paid in November, 1887; and that the note in suit was not delivered up at the time of payment because Peck did not then have it with him, nor afterwards because of the neglect and oversight of the parties. All this the plaintiff denied. Judgment was rendered for the defendants, and the plaintiff brings this appeal.

Five reasons of appeal are filed, but, as the fifth does not comply with the requirements of section 1135 of the General Statutes, but is a mere general assignment, it will not be considered. The other reasons of appeal will be considered in the order of their assignment.

Under the fourth reason of appeal we think the plaintiff is entitled to a new trial, and this ordinarily would render it unnecessary to consider the others; but, as the questions involved in them may again arise upon a new trial, we have concluded to express our views as briefly as possible upon them also.

The first assignment relates to the admission of the following entries on pages 166 and 167 of the account book of Mr. Milne, and in his handwriting:

1888. Feb. 1.

House and lot 215 "West 18th St.

$30,000

""

Paid on acc

$ 8,000

""

" E. N. Peck and brother

9,500

""

""

2,000

""

Due Mrs.——, mortgage

10,500

$80,000

$30,000

If these entries, either alone or in connection with other evidence in the case, are intelligible, then, if they are also relevant, they are admissible, under our statute, as memoranda made by Milne in his lifetime. Setchel v. Keigwin, 57 Conn. 473, 18 Atl. 594. The deed and the other evidence in the case make it quite clear that these entries refer to the purchase of the New York property, and, read in the light of that other evidence, the entries themselves state the price of the property, the payment of that price, and, to a certain extent, the mode of payment, and the amounts which made up the full price. Now, the plaintiff, as we understand the record, disputed the fact of the purchase of the New York property, as well as the fact that the note formed a part of the consideration for it; and these entries are certainly relevant upon the former fact, because they refer to such a purchase. But the plaintiff says they were offered to prove the payment of the note, and that they do not in any manner refer to the note, and for this reason are not relevant on the question of its payment Standing by themselves, they do not show a reference to the note; but this, of itself, does not necessarily make them inadmissible. As one step in their proof, it was necessary for the defendants to show that there was such a real-estate transaction, including, of course, the price paid, and how it was paid if paid at all, and these entries are clearly relevant for that purpose, and, for aught that appears from the record, may have been offered for that purpose alone, for they were offered generally. But we think they were admissible also, in connection with the other evidence, to show that the note formed part of the consideration for the real estate, and had been paid as part thereof. The other evidence showed that the note was given as part of that consideration, and that the balance was made up by the transfer of a mortgage of $8,000 to Mr. Peck, and by Mr. Milne's assuming two mortgages, —one for $9,500 and one for $10,500; and these entries show payments of amounts corresponding exactly to the amounts of these mortgages and this note. That the $2,000 item was apparently paid to E. N. Peck and brother, and did not, as it stood, expressly refer to the cote, did not necessarily destroy its relevancy, although it might affect its weight. It might be shown by other evidence to refer to the note, and to nothing else, just as we think the item of $8,000 paid on account might have been shown to refer to the mortgage transferred to Mr. Peck. In a precisely analogous case subsequently, both parties offered outside evidence to prove that the word "interest" in the receipt of April, 1888, hereafter mentioned, referred to the interest indorsed upon the note, and did so properly, we think.

The second reason of appeal relates to the testimony of the witness Pierce. The defendants denied that Mr. Milne had paid interest on the note in 1888 and 1889, and thus denied the correctness of the last two indorsements. As tending to show the truth of their claim, they called Mr. Pierce's attention to the account book of Mr. Milne. He testified in substance, and without objection, that it contained no entry of any payment of interest to Mr. Peck. The defendants then offered to show by him that said book contained frequent entries of the payment of interest to others; that is, as we understand, to show that the book contained entries of very many, although not of all, payments of interest made by Mr. Milne to others. To this evidence the plaintiff objected, unless it was shown, in substance, that all payments of interest made by Mr. Milne had been so entered. It seems to us that the evidence thus objected to is of the same nature as that to which this witness had just previously testified without objection. The absence in such a book of any entry of payment of interest to Mr. Peck tended, to some slight extent, to show that no such payment had been made; and the frequent presence of such entries of payments of interest to others, even though all such payments were not entered, was a fact of like nature, and would also tend, in some slight degree, to the same conclusion. The fact that all payments of interest were not entered upon the book would, generally speaking, go to the weight rather than to the admissibility, of the evidence in both cases. We think the evidence was admissible for what it was worth, without first showing that all payments of interest were paid by check or entered upon the account book.

The third reason of appeal relates to the testimony of Mr. Ritch concerning certain declarations of Mr. Milne. For many years before the note was given, and down to the time of Mr. Peck's death, he (Peck) had been the agent of Mr. Milne, looking after Mr. Milne's real estate, collecting the rents, and rendering to him monthly statements and making monthly settlements. Now, with reference to the last two indorsements of interest on the note in suit, the defendants claimed that, if any such interest was in fact received or applied by Mr. Peck, the same was applied by him from the rent money, and without the knowledge of Mr. Milne, and that he rendered his statements in such a way that he could have done so without the knowledge of Mr. Milne. In support of these claims they asked Mr. Ritch: "Did Mr. Milne ever make any statement to you in reference to the accounts which Mr. Peck rendered to him for rents collected?" The witness answered as follows: "I had a conversation with him in regard to Mr. Peck's accounts immediately after Mr. Peck's death. Mr. Milne asked me if I could get him a reliable real-estate agent in New York who could collect his rents and make returns; that he had been wholly unable to get state ments from Mr. Peck showing what deductions were made from the rents received; and that he had to take checks from Mr. Peck without a knowledge on his part of how his account stood. There is no complete statement" The plaintiff objected to the question and the answer, but we are here concerned only with the answer. The plaintiff now says the declarations were inadmissible because they related merely to the inability of Mr. Milne to get correct statements of account, and not to the payment of the note, and because they were too general, and do not refer to the statements made in April, 1888, and March, 1889, when the indorsements' in dispute were made. We think the evidence was admissible under our statute. Its generality goes to its weight only. The declaration was, in form and in effect, that he had been unable to get any correct statements from Mr. Peck. This...