Reynolds v. Manning

• Decision Date: 16 May 1860
• Citation: 15 Md. 510
• Parties: WM. REYNOLDS, Administrator of ALEX. PAUL, v. MANNING, STIMPSON & CO.
• Court: Maryland Court of Appeals

15 Md. 510

WM. REYNOLDS, Administrator of ALEX. PAUL, v. MANNING, STIMPSON & CO.

Court of Appeals of Maryland.

May 16, 1860

In a suit by an administrator, a witness for the plaintiff was objected to as incompetent, and, on his voir dire, stated he was a creditor of the estate but had sold and assigned his claim, worth $900, (of which some $700 was dependent on the result of this suit,) for $600, and received from the assignee two notes of $300 each, of which one was paid, the other not; that he does not intend to demand payment of the last note, if the plaintiff loses this suit, but the sale was fair and without any condition that the payment of the notes should depend upon such a result; that he had made an absolute transfer of all his interest, and had a legal right to recover the note from the assignee, but would not do so if this suit was lost, but would if there was a recovery in it; that it is his intention not to make the assignee pay the second note if this suit is lost, but he may see fit to change this intention, and there was no understanding between him and the assignee that could prevent his doing so; that when he made the transfer, he told the assignee he expected to be a witness for the plaintiff in this suit. HELD:

That he was a competent witness; his legal interest, if any, was, at least, doubtful, remote and contingent; if he has any direct interest, it seems to depend upon an honorary obligation.

The old rule, excluding witnesses as incompent on the ground of interest, has been much relaxed, and the later decisions manifest an inclination in the courts to consider the objection as going to credit and not to competency, unless the interest is shown with clearness and certainty.

To render a witness incompetent on the ground of interest, the interest must be legal, certain and direct, not possible only, not remote, probable or doubtful.

A witness is not incompetent because he considers himself under an honorary obligation, respecting the matter in controversy, in favor of the party calling him, nor will his mere belief that he has an interest in the controversy, exclude him.

If the possessor of a disqualifying interest, assigns such interest with a view of becoming a witness, and such be the purpose of the assignment, it will not, per se, prevent his being a competent witness.

Entries made by a clerk in the regular course of business, he having no interest, at the time, in stating an untruth, are admissible in evidence after the clerk's death, or on his becoming insane, on proof of his handwriting.

In this case the clerk was an Englishman by birth, who came to this country and remained but a few years, and then returned to England, unmarried, and leaving no relations here. More than three years before the trial, a letter was received from him written in Australia, and he has never been heard from since. HELD:

That under these circumstances, entries made by him, as clerk, are admissible in evidence, on proof of his handwriting.

An offer to pay part of a claim which had been previously presented to the defendant, and which he refused to pay, made after suit brought and not accepted, is not admissible in evidence against the defendant.

There need not be an express declaration that the offer was confidential, or made without prejudice, to make such offer inadmissible; the nature of the negotiation and the character of the transaction, will be looked to to ascertain whether the offer was intended to be without prejudice.

The whole of what a party says at the same time, and relating to the same subject, must be given in evidence, but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, including as well the facts asserted by the party in his own favor, as those making against him.

APPEAL from the Superior Court of Baltimore City.

Assumpsit brought on the 8th of July 1855, by the appellant against the appellees, for work and labor done, and materials furnished by the plaintiff's intestate for the defendants. Plea non assumpsit.

In the course of the trial, four exceptions were taken by the plaintiff to the rulings of the court below, (LEE, J.,) all of which are fully stated in the opinion of this court. The verdict and judgment were in favor of the defendants, and the plaintiff appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

H Stockbridge and Wm. F. Frick for the appellant:

1 st Exception. The court erred in holding that the witness, Thos. H. Paul, has a legal interest in the result of this suit. The case of Bent vs. Baker, 3 Term Rep., 27, has settled the doctrine that an interest to disqualify a witness, must be some legal, certain and immediate interest in the result of the suit, or in the record, and that principle has since been unquestioned in England and this country. The mere belief of the witness that he has an interest, or the pressure of a moral or honorary obligation upon him short of a legal responsibility, goes to the question of his credibility, not his competency. 1 Greenl. on Ev., sec. 388. 3 G. & J., 282, Stimmel vs. Underwood. Ibid., 355, Watts vs. Garrett. 5 Md. Rep., 404, Funk vs. Kincaid. 6 Md. Rep., 541, Melvin vs. Melvin. The case of Crawford vs. Brooke, 4 Gill, 213, does not conflict with this view. That case turned upon the construction of the Act of 1829, ch. 51. The assignor was admitted as a witness in a suit brought by the assignee in his own name, the assignment being voluntary and without valuable consideration. The question being, whether the assignment was bona fide under the Act, and the motive of the transfer being the object of inquiry, it was ruled that the assignor might be asked, " whether he did not make the transfer for the purpose of becoming a witness, and so remove the bar of the statute of limitation." This went to the point whether the assignee was capable to sue, not to the competency of the witness. Besides, in this case the motive of the assignment of the witness, as stated by himself, was " to better himself." He did not say he made the transfer for the purpose of becoming a witness, but only that, at the time of the transfer, he expected to be a witness. And, further, the assignment in this case was for a valuable consideration, in part paid, with a legal right to the balance, and could not be declared void under the Act of 1829. On this point see, also, 7 Md. Rep., 602, Pegg vs. Warford.

2 nd Exception. Entries in the books of an intestate, in the handwriting of a clerk who is beyond the seas and cannot be reached by process of the court, made by the clerk in the usual and regular course of his business, may be offered in evidence, by the intestate's administrator, in a suit between him and persons to be charged with such entries. The doctrine is established in 1 Salk., 285, Price vs. Earl of Torrington, that entries made in the usual course of business by the plaintiff's clerk, who had no interest in stating an untruth, are to be received as proof of the facts stated in such entries, after the death of the clerk, on proof of his handwriting. The authorities cited in 1 Smith's Lead. Cases, 139, 143, establish this to be now the settled law in all the States in this country. 15 Mass., 380, Welsh vs. Barrett. 1 Wash. Va. Rep., 76, Lewis vs. Norton. 2 H. & J., 77, Clarke vs. Magruder. 7 H. & J., 467, King vs. Maddux. The principle has been wisely extended to cases where the clerk from insanity, absence beyond the State, or for other reasons, could not be produced, nor his evidence taken by commission; the reason for admitting the entries being the same under these circumstances as in the case of his death. 2 McCord, 349, Elms vs. Chevis. 1 Bay, 480, Tunno vs. Rogers, et. al. 1 Binney, 234, Sterrett vs. Bull. 12 Sergt. & Rawle, 49, Philadelphia Bank vs. Officer. 8 Watts, 77, Alter vs. Berghaus. 2 Watts & Sergt., 137, Hay vs. Kramer. 3 Pick., 96, Union Bank vs. Knapp. 6 Cushing, 216, Holbrook vs. Gay. 1 Smith's Lead. Cases, (5th Ed.,) 397. In this case, the production of the clerk, who made the entries, was as much a matter of impossibility as though he were insane or dead. He had not been heard of for three years, and was even then in Australia, in a new and only semi-civilized country, where a commission could not reasonably be expected to reach him. The same reasons which, in case of his being dead, would render the entries made by him admissible in evidence, existed in full force under these circumstances. He was, for all practical purposes of getting at his evidence, dead; though sufficient time has not elapsed since he had been last heard of to create a legal presumption of his death.

3 rd Exception. The offer of a sum, by way of compromise of a claim tacitly admitted, is receivable, (even post litem motam, ) unless accompanied with a caution that the offer is confidential. 1 Greenlf on Ev., sec. 192. In Wallace, et al., vs. Small, 1 Moody & Malkin, 446, in 22 Eng. C. L. Rep., 355, there was some difficulty in fixing the defendant with the contract. It appeared, however, that after action brought offer of a specific sum had been made. It was objected to, because, from the nature of the transaction, it was an offer for compromise, and must, therefore, be understood to be without prejudice, although nothing was said to that effect at the time. Lord Tenterden said: " It was prima facie evidence. It is not said to be without prejudice, and an offer to compromise may very well be made without any restriction as to confidence." The case of Thompson vs. Austen, 2 Dow & Ryl., 358, in 16 Eng. C. L. Rep., 95, determines that the true principle upon which the offer is excluded, is " the condition, express or implied,...