Silva v. Pickard

• Decision Date: 04 June 1894
• Docket Number: 415
• Citation: 37 P. 86,10 Utah 78
• Parties: V. M. C. SILVA, RESPONDENT, v. W. L. PICKARD AND HENRY COHN, F. H. AUERBACH AND S. AUERBACH, COPARTNERS AS H. COHN & COMPANY, TERRITORIAL WOOL ASSOCIATION AND F. H. AUERBACH DEFENDANTS, OF WHOM H. COHN & COMPANY AND F. H. AUERBACH ARE APPELLANTS, AND W. L. PICKARD, RESPONDENT
• Court: Utah Supreme Court

37 P. 86

10 Utah 78

V. M. C. SILVA, RESPONDENT, v. W. L. PICKARD AND HENRY COHN, F. H. AUERBACH AND S. AUERBACH, COPARTNERS AS H. COHN & COMPANY, TERRITORIAL WOOL ASSOCIATION AND F. H. AUERBACH DEFENDANTS, OF WHOM H. COHN & COMPANY AND F. H. AUERBACH ARE APPELLANTS, AND W. L. PICKARD, RESPONDENT

No. 415

Supreme Court of Utah

June 4, 1894

APPEAL from the district court of the third judicial district, Hon Charles S. Zane, Judge.

Action by V. M. C. Silva against W. L. Pickard and Henry Cohn, F. H Auerbach and S. Auerbach, copartners as H. Cohn & Co. Territorial Wool Association and F. H. Auerbach, for a dissolution of the copartnership known as the Territorial Wool Association and for an accounting. From the judgment of the district court confirming the report of Waldemar Van Cott, referee, defendants H. Cohn & Co., and F. H. Auerbach appeal.

Reversed.

Messrs. Marshall & Royle and Mr. W. H. Dickson, for appellants.

The court erred in admitting the self-serving declarations. To the general rule that the prior declarations of a witness made out of court are not admissible as evidence in his favor, there are two exceptions. First--Where the witness is sought to be impeached by statements claimed to have been made by him out of court which are not in harmony with his sworn testimony, and it is claimed that a different version of the transaction given by the witness upon the trial is due to the fact that he has an interest at the time of the trial in the result of the litigation which did not actuate him at the time he made the declarations. Second--Where it is claimed that the testimony of the witness is a recent fabrication, born of his interest in the cause or his relation to the parties. 1 Thomp. on Trials, §§ 573-4-5-6; Read v. Spaulding, 42 N.H. 114; Robb v. Hackley, 23 Wend. 50; Stolp v. Blair, 68 Ill. 541; Commonwealth v. Jenkins, 10 Gray, 485; 2 Tay. on Ev. § 1476; 1 Whar. Ev. § 570; People v. Doyell, 48 Cal. 85; Munson v. Hastings, 12 Vt. 346. It appears by the record affirmatively, that Silva and Pickard at the time they made the statements, had an interest or motive which would prompt them to speak untruly. Mason v. Destal, 88 Cal. 396.

Messrs. Sutherland & Howatt, for Pickard, respondent.

Mr. O. W. Powers and Mr. Ogden Hiles and Messrs. Brown & Henderson, for Silva, respondent.

The finding that the resolution was adopted is a conclusion arrived at on a substantial conflict of the evidence. In such cases the appellate court defers to the trial court and will not disturb the decision. People v. Peacock, 5 Utah, 237; United States v. Harris, Id. 436; Mining Co. v. Mining Co., Id. 3; Walker v. Popper, 2 Utah, 281; Dewey v. Snyder, Id. 344. The declarations of Silva and Pickard made soon after the adoption of the resolution were not self-serving. They were made before there was any anticipation that there would be a loss on the wool they were engaged in buying. Had they anticipated the loss, they would have made no purchases at all. They were anticipating a profit. The case being one decided by the court, there being sufficient competent evidence to sustain the findings, exceptions to the admission of irrelevant, incompetent or immaterial evidence will not be sustained. Mining Co. v. Haws, 7 Utah, 515; Foundry Co. v. Mammoth Mining Co., 6 Utah, 351; Rogers v. Cook, 8 Utah, 123; Insurance Co. v. Friedenthal, 27 P. 88. The testimony of the so-called self-serving or ex parte declarations of Silva and Pickard was admissible under the exceptions to the general rule. Hays v. Cheatham, 6 Lea, 10; Taylor on Evidence, § 1330; 1 Whar. Ev. § 370; 1 Greenl. Ev. § 469; 2 Phillips Ev. p 445, 446; 1 Starkie Ev. p. 149; Ellicott v. Pearl, 10 Pet. 412, 439; Robb v. Hackley, 23 Wend. 50-54; Anderson v. Jones, 10 S. & R. 410; Cook v. Curtis, 6 H. & J. 93; McAleery v. Horsey, 35 Md. 441; Mollonee v. Duff, 72 Md. 283; Gates v. People, 14 Ill. 434; Stolp v. Blair, 68 Ill. 543; Coffin v. Anderson, 4 Blackf. 395; Daly v. State, 28 Ind. 285; Clark v. Bond, 55 Ind. 169; State v. Vincent, 24 Iowa 570-575; Green v. Cochran, 43 Iowa 544-547; People v. Doyell, 48 Cal. 85; Barkly v. Copeland, 74 Cal. 1; Gibbs v. Linsley, 13 Vt. 208; Clinton v. Sage, 57 N.Y. 640; State v. Cruise, 19 Iowa 312-317; Card v. Foote, 56 Conn. 369. The testimony of Raybould and other witnesses as to the declarations of Silva and Pickard not only falls within one of the rules making it admissible, but under all of them. 1, The declarations were made soon after the transaction in litigation, namely, the adoption of the resolution, and before Silva and Pickard had been subjected to any disturbing influences. 2, The declarations were antecedent to their testifying as witnesses and antecedent to any controversy between the parties. 3, The declarations were made at a time when the motive that existed for Silva and Pickard to misstate the facts at the trial did not exist. 4, The declarations were made at a time before their ultimate effect and operation, arising from a change of circumstances, could have been foreseen. There is nothing in the contention of the appellants that the rule only applies to witnesses not parties to the suit. When the statute makes parties competent as witnesses, the law applicable to witnesses becomes applicable to them. Hays v. Cheatham, supra; McAleery v. Horsey, supra; State v. Cruise, supra.

MERRITT, C. J., BARTCH, J., SMITH, J., MINER, J., concur.

OPINION

PER CURIAM

This action was brought for the settlement of what is claimed to be a partnership account, and the distribution of a considerable sum of money, in the hands of Frederick H. Auerbach, belonging to the partnership. From the record it appears that on or about the 1st day of May, 1883, W. L. Pickard, Henry Cohn, and F. Auerbach and brother, constituting the firm of H. Cohn & Co., and V. M. C. Silva, for the purpose of trading in wool, as partners, entered into written articles of copartnership, as copartners under the name and style of the "Territorial Wool Association," specifying in such articles that they enter into this agreement of copartnership "each for himself, and to each other." These articles are drawn in the shape of a constitution and by-laws, and are signed by the parties, and form a part of the complaint. Section 11 of these by-laws is in the following words, to-wit: "Sec. 11. The profits, if any, after deducting the expenses incurred in selling the wools, such as interest, brokerage, insurance, storage, labor, and other incidental expenses, shall be divided equally into three shares between W. L. Pickard, H. Cohn & Co., and V. M. C. Silva, the three members or firms of the association subscribing to these articles of association, and the losses, if any, shall also be equally divided." Section 12 of these by-laws further provides as follows, to-wit: "Sec. 12. As soon as the whole amount of wool is closed out in Boston, the executive committee shall prepare a statement of all sales and expenses pertaining thereto, and submit the same to the association, and if any funds remain to the credit of the association, or the account with the Mass. Loan & Trust Co. representing the same, the same shall be subject to draft of the president of the association, who, as soon as he is notified that the same has been duly honored, shall subdivide the same into equal parts between W. L. Pickard, H. Cohn & Co., and V. M. C. Silva." Said agreement was for the period of one year, but it is agreed by all parties that, in so far as the original articles of agreement are concerned, they remain in full force between the parties up to the trial of this cause. Under the pleadings, and at the trial, Silva and Pickard alleged an addition thereto, made in 1887, of the following resolution, to-wit: "Resolved, that, in view of the large amount of wool carried over from last season, we limit our entire purchase of wool for this season to one million (1,000,000) pounds of wool equally between us." Under the pleadings, and at the trial, H. Cohn & Co. denied that said last-named resolution was passed, or that the original articles of copartnership had been altered in any particular.

It seems that all parties to the suit stand upon the common ground that, if the resolution was in force (part affirming it was, and part denying), that this was the only change in the original articles, and, with the exception of the resolution (if that was an exception), the Territorial Wool Association was acting and conducting its business under the original articles. The association made a good deal of money in the years 1883, 1884, and 1885, and the profits were shared equally between Silva, Pickard, and H. Cohn & Co. In 1886 the association lost money, but, under the articles of the association, the losses were apportioned in the same manner. In the early part of the season of 1887, the price of wool in the eastern market was low, but as the season advanced telegrams were received by the association here stating a heavy advance in the price of wool in the eastern market. In consequence of this news, all the members of the association commenced buying wool freely, H. Cohn & Co. purchasing 701,403 pounds, Pickard, 366,571 pounds, and Silva, 330,398 pounds. When these purchases reached a market, wool had fallen in price, and remained so low that the wool of the Territorial Wool Association was closed out in the east at a very heavy loss. In winding up the settlement with their eastern consignees, there was in January, 1886, remitted back to the association here a large sum of money, to be distributed to those entitled to it, and pending distribution, placed in F. Auerbach's. keeping, bearing interest. The amount so held by Auerbach, Silva and Pickard place at $ 30,000, and H. Cohn & Co. at $ 27,804.42. After the...