Tenney v. Foss
| Decision Date | 26 June 1929 |
| Parties | TENNEY v. FOSS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County; Stanley E. Qua, Judge.
Action by George R. Tenney against Ernest Foss, as executor of the last will and testament of Clara A. Burley, deceased, in which Jessie G. Tenney was substituted as administratrix of the estate of George R. Tenney, deceased. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.
J. W. Sullivan, of Lynn, for plaintiff.
R. E. Burke, of Newburyport, for defendant.
This is an action of contract originally brought by George R. Tenney against the executor of the will of Clara A. Burley, who died before this action was begun. While the action was pending, the plaintiff died, and it was thereafter prosecuted by his widow, Jessie G. Tenney, who is the administratrix of his estate. At the trial, she was permitted to testify, subject to the defendant's exception, that before this action was brought her husband had said to her, in the presence of others, that Clara A. Burley, with whom the alleged contract was made, had said to him at a time when it was alleged that he was rendering services to Mrs. Burley: ‘I will see that you get your pay later, and that you will be well paid for all these things you are doing for me now, and what you do, when I am through with it.’ The jury returned a verdict for the plaintiff.
The only question of law presented by the record relates to the admission of the foregoing testimony respecting payment for services rendered, which the plaintiff seeks to recover in the present suit. G. L. c. 233, § 65, provides that ‘a declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.’ The record does not expressly state that such findings were made by the trial judge, but it is plain therefrom that he found that the declaration was made in good faith, before the commencement of the action, and upon the personal knowledge of the declarant. The defendant bases his objection ‘on the ground that the answer called for statements made by one deceased person of what another deceased person had said to him.’ It was held in Dickinson v. Boston, 188 Mass. 595, 597, 75 N. E. 68, 70 (1 L. R. A. [N. S.] 664): ‘While a preliminary finding of the good faith of the declarant by the court is required before such declarations can be received, this judicial action is to be inferred from the admission of the evidence itself where the exceptions fail to state that the inquiry was not made.’ See, also, Sylvester v. New York, New Haven, & Hartford R. Co., 217 Mass. 148, 152, 104 N. E. 437;Commonwealth v. McIntosh, 259 Mass. 388, 391, 156 N. E. 712;Ferris v. Ray Taxi Service Co., 259 Mass. 401, 404,156 N. E. 508. The statute is to be liberally construed. It is plain that if Tenney, during his lifetime, had been called as a witness, he could have testified to what the declarant told him. Crosby v. Mutual Benefit Life Ins. Co., 221 Mass. 461, 464, 109 N. E. 365. Declarations of deceased persons to be admissible under the statute must be made not only in good faith, but ‘upon the personal knowledge of the declarant.’ They ‘must be derived from the exercise of the declarant's own senses as distinguished from opinions based upon date observed by him or furnished by others.’ Little v. Massachusetts Northeastern Street R. Co., 223 Mass. 501, 504, 112 N. E. 77, 78.
In Dixon v. New England R. Co., 179 Mass. 242, 60 N. E. 581, a witness testified that one Dean, a police officer, had stated that he had arrested the plaintiff for evading his fare, and that he (Dean) had heard the conductor in his presence demand fare of the plaintiff and that the plaintiff refused to pay. There was evidence that Dean was dead at the time of the trial. It was held that the declaration was made in good faith and upon Dean's personal knowledge and therefore was admissible. The words of the conductor constituted the material facts respecting which the declaration was made. The following cases also are analogous in principle...
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In re Keenan
...v. Reinherz, 192 Mass. 52, 53, 77 N. E. 880;Randall v. Peerless Motor Car Co., 212 Mass. 352, 384, 385, 99 N. E. 221;Tenney v. Foss, 268 Mass. 69, 71, 167 N. E. 280. It has not been confined to actions at law or to actions in any constricted sense. It has been held to apply to suits in equi......
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Eastern Paper & Box Co. v. Herz Mfg. Corp.
...of a deceased person relative to the terms of an oral contract are not matters beyond the scope of the statute. Tenney v. Foss, 268 Mass. 69, 71, 167 N.E. 280;Kulchinsky v. Segal, 307 Mass. 571, 573, 30 N.E.2d 830. The judge excluded evidence that the plaintiff was ready, able and willing t......
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Rothwell v. First Nat. Bank of Boston
...that the admission of the declaration imports such a preliminary inquiry and finding if nothing to the contrary appears. Tenney v. Foss, 268 Mass. 69, 71, 167 N. E. 280;Murphy v. Hanright, 238 Mass. 200, 206, 130 N. E. 204. But where as in this case the judge excludes the declaration, his a......
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Old Colony Trust Co. v. Shaw
...he was personally negotiating.' New York Cent. R. R. Co. v. Central Vermont Ry., supra, at 68, 136 N.E. at 829. See Tenney v. Foss, 268 Mass. 69, 167 N.E. 280. Compare Hasey v. Boston, 228 Mass. 516, 117 N.E. 827, where the declaration itself established that it was not made upon the person......