Sears v. Howe

• Decision Date: 03 March 1908
• Citation: 68 A. 983,80 Conn. 414
• Court: Connecticut Supreme Court
• Parties: SEARS v. HOWE.

68 A. 983

80 Conn. 414

SEARS

v. HOWE.

Supreme Court of Errors of Connecticut.

March 3, 1908.

Appeal from Superior Court, Hartford County; Ralph Wheeler, Judge.

Action by Cushman A. Sears against Louis, W. Howe, administrator of the estate of C. H. Hall. From a judgment for plaintiff, defendant appeals. Affirmed.

H. B. Freeman, Jr., and S. N. Dunning, for appellant. J. R. Buck and J. H. Buck, for appellee.

THAYER, J. The complaint alleges that the plaintiff indorsed for the accommodation of the defendant's intestate two four-month notes payable at bank, that the maker did not pay them when due, and that the plaintiff was compelled to and did pay them. The defendant, by his answer, denied knowledge of the making, indorsing, and payment of the notes, and also pleaded the statute of limitations. The plaintiff replied, denying the allegation that the right of action did not accrue within six years, and also alleged that there was an acknowledgment and new promise by the decedent in writing within six years. After a demurrer to the entire reply had been overruled, the defendant rejoined by a denial. The demurrer was properly overruled, and, as the trial thereafter proceeded as if no demurrer had been filed and the defendant raised upon the trial, and saved by his appeal, the same questions attempted to be raised by the demurrer, it is unnecessary to consider the assignment of error based upon the overruling of the demurrer.

The substantial questions in the ease are (1) whether certain letters of the decedent, which were admitted in evidence against the defendant's objection, either alone or in connection with letters of the plaintiff (which, and parol proof of the contents of which, were admitted against the defendant's objection), which were referred to in the decedent's letters and to which the latter were replies, contained an acknowledgment or new promise sufficient under section 707 of the General Statutes of 1902, to take the case out of the statute of limitations; and (2) whether the admission of those letters in evidence and proof of the contents of the plaintiff's letters by parol was proper. The statute referred to provides that, "in actions against the representatives of deceased persons, no acknowledgment or promise shall be sufficient evidence of a new or continuing contract to take the case out of the statute of limitations unless the same be contained in some writing made or signed by the party to be charged thereby." The defendant claims that the indebtedness referred to, as well as an unequivocal acknowledgment of it as an existing obligation, must all appear in the writing, and cannot be aided either by oral or written evidence of other parties. But, when a document includes a reference to another existing one and is unintelligible without such reference, the one so referred to becomes a part of the one making such reference. Wigrnore, Evidence, § 2120. In Watson v. Moore, 1 C. & K. 626, counsel, who offered in evidence a letter referring to another to which it was a reply, was stopped by Pollock, C. B., and not allowed to introduce it without putting in the one to which it was an answer. The decedent's letters, without reference to the plaintiff's letters to which they are replies, do not identify or in any way refer to any obligation of the decedent to the plaintiff, or show to what matters they refer. The plaintiff's letters referred to the notes in question and requested payment. The decedent referred to these letters in his replies, and made them to that extent a part of his own, and thus showed to what matter his own letters referred. The plaintiff's letters to the extent to which they made intelligible the decedent's answers thereto became by the reference a part of such answers, and in connection therewith were admissible. Trischet v. Hamilton Ins. Co., 14 Gray (Mass.) 456, 457; Buffum v. York Mfg. Co., 175 Mass. 471, 474, 56 N. E. 590; Mutual Benefit Ins. Co. v. Higginbotham, 95 U. S. 380, 390, 21 L. Ed. 499. The defendant's objection thereto was therefore properly overruled.

The defendant, being called upon to...