Walter v. Sperrt

• Court: Connecticut Supreme Court
• Writing for the Court: WHEELER, J.
• Citation: Walter v. Sperrt, 85 A. 739, 86 Conn. 474 (Conn. 1913)
• Decision Date: 31 January 1913
• Parties: WALTER v. SPERRT.

85 A. 739

86 Conn. 474

WALTER

v. SPERRT.

Supreme Court of Errors of Connecticut.

Jan. 31, 1913.

Appeal from Court of Common Pleas Court, New Haven County; Earnest C. Simpson, Judge.

Action on the common counts to recover for goods sold by George F. Walter against Albert A. Sperry. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered.

In defendant's Exhibit No. 7, mentioned in the cause under "Unpaid Bills of N. A Morris. Bathhouses, etc."—appeared the item: "G. F. Walter. Bill for lumber, $250."

George E. Beers, of New Haven, for appellant.

Charles A. Hamilton, of New Haven, for appellee.

WHEELER, J. The plaintiff brought his action against Albert A. Sperry, since deceased, to recover a balance for goods sold, and the action is continued against his administrator.

Rulings upon evidence comprise the chief assignments of error on the appeal.

The plaintiff, a grain and lumber dealer, delivered the lumber, being part of the goods sued for, upon certain premises used for hotel purposes and owned by the original defendant, Albert A. Sperry, and leased to one Morris, and the material so delivered was used in the erection upon said premises of some bathhouses.

The plaintiff claimed to have proved that these goods were ordered by the original defendant and delivered at his request, and duly entered as charges against him on the books of the plaintiff.

The defendant claimed to have proved that the original defendant leased said hotel premises to Morris for a fixed rental, and his agreement to make, at his own expense, certain improvements in the property, including the installment of a gas plant and the construction and erection of new bathhouses upon said premises, and that he merely introduced Morris as a prospective customer to the plaintiff, and neither ordered, received, nor used said material.

1. The defendant offered a written statement (Exhibit 7, for identification) in the handwriting of the original defendant, and it was excluded. It purported to contain items of expenditures made on said hotel, also items of bills paid by Morris on gas plant and bathhouses, and also items of unpaid bills of Morris on bathhouses and gas plant. Thereupon the defendant administrator, a son of the original defendant, was inquired of what his father had said about the items of lumber as they appeared on the second page of said Exhibit 7. In excluding this offer the court ruled that the witness might state anything said by his father in reference to his father's dealing with the plaintiff in regard to the purchase or ordering of the lumber. The witness was then permitted to testify that his father, while discussing the items on said exhibit, said he had had no dealings with the plaintiff. Thereupon said exhibit was again offered in evidence, and again excluded.

The paper was a memorandum made by a deceased; it contained matter presumptively relevant to the controversy. These are the conditions which, under G. S. § 705, make the entries and memoranda of a deceased evidence. If explanation were required to make its items clearer, the attempt to prove what the deceased said about the items of lumber would have supplied this. Peck v. Pierce, 63 Conn. 310, 312, 28 Atl. 524; Setchel v. Keigwin, 57 Conn. 473, 478, 18 Atl. 594.

The plaintiff's claim that this exhibit and the evidence offered supplementary to and explanatory of its items was irrelevant is untenable. Douglas v. Chapin, 26 Conn. 76, 91.

A further objection is that it does not appear when the exhibit was made up, perhaps after suit brought. Even so, it was admissible, no matter when made. The fact that the deceased made it, and that it is relevant, are the controlling tests. Craft's Appeal, 42 Conn. 146, 153; Allen v. Hartford Life Ins. Co., 72 Conn. 693, 45 Atl. 955.

It is objected, too, that the exhibit must contain some fact or facts to which the deceased if living, could testify. There is no such limitation in the statute. Its object was to "enable the representatives of deceased persons to sustain just and defeat unjust claims affecting the estate." With this end in view, we admitted the letters of a deceased woman to her counsel stating the facts of her case. Bissell v. Beckwith, 32 Conn. 509, 516.

The objection that the exhibit contains, at most, only an expression of opinion fails to properly interpret its contents; its items are statements of fact and not opinion.

The objection that the exclusion of this evidence was harmless, because the witness was allowed to testify to all the father said concerning the purchase and delivery of the lumber, is based upon reasoning whose facts are faulty; and, in addition, the defendant was entitled to the benefit of the written word supplemented by appropriate explanation.

For similar reasons the court excluded the entries of the items in issue appearing upon a book of the deceased (Exhibit 9, for identification), and a paper (Exhibit 10, for identification) containing similar entries.

Evidence of this character was important to the defendant's case. No matter how many times a...