Summary
On exceptions, from the superior court.
Assumpsit for money had and received, to recover back $293.17 paid under protest to redeem certain real estate from a mortgage.
While the suit was pending a deposition was taken on the part of the plaintiff out of the state by commission and duly placed on file. This deposition contained an important reference to the book of accounts of the late Frederick Merrill, which book was in the possession of the plaintiff After this deposition had been filed, and before trial, notice was duly served on the plaintiff under the rule to produce the book. When the deposition was offered at tbe trial, the question and answer which contained, among other things, this reference to the book, was objected to by the defendant. The objection was sustained and the question and answer wholly stricken out. During the progress of the trial, and after the offering of the deposition, the book of accounts lying upon the table, the counsel for the defendants asked the counsel for plaintiff to let him see it. The counsel for the plaintiff asked the counsel for the defendant if he called for the book and, upon his assenting, granted the request; and the counsel for defendant saw the book and examined it, and nothing more.
On account of this examination the counsel for the plaintiff claimed that this book was made evidence and should go to the jury. The court thereupon recalled so much of the deposition as related to the book and was explanatory of certain entries therein which had been stricken out, and admitted it and admitted the book.
It is conceded that the only entries on the book which were admitted were pertinent to tbe case.
The presiding judge, among other things, instructed the jury as follows:
The defendant says that in 1853 his father and he purchased some timber of the Winslows and gave $850 for it; that they purchased it jointly, equally interested in the results of the transaction; that he paid $250 towards it in gold ; that three notes were given of $200 each, payable in one, two and three years; that after making the cash payment himself, entirely out of his own money, as defendant says, then the two notes which matured earliest, the one and two years notes, were paid out of the proceeds of the Winslow timber; that before the third note became due, the Winslows wishing to realize upon the note and as the defendant and his father were not ready to advance the payment of it prior to its maturity, the note was sold to Henry Gallison; that subsequently the defendant by labor performed upon the barn of Gallison, and by materials furnished, and perhaps in some other way in which he states, paid his one-half of that third $200 note, and that it was indorsed upon the note as paid by his hand, and that note he claims has not been produced here at the trial. °
So that the defendant claims two of the notes were paid out of the joint proceeds of the timber purchased, and that he had paid his one-half of the third note, leaving his father’s half, due and unpaid, and that this one-half subsequently went into the mortgage; that the father gave this mortgage to secure the payment of it. But the defendant says nothing was ever received by him as remuneration for the $125, gold, which he had paid in cash for his father at the time of the cash payment towards the Winslow timber ; and he says from 1853 down to the date when the ship timber was'delivered to him for the brig, which was in the winter of 1863-é, he had never received from his father any payment of the amount so advanced in his father’s behalf, and that when he came to build this brig, he told his father it would require all his property to build his quarter of the brig, and asked his father to deliver to him this ship timber in payment of the $125, and interest, he had advanced so long before for the benefit of his father, towards the purchase of the Winslow timber.
That, briefly stated, is an outline of the case which the defendant presents, and it may perhaps aid you somewhat in bringing the case down to the precise limits where the controversy lies.
Now you perceive that the investigation of a question like this is. beset with many difficulties. The lapse of time, the fact that the parties have reduced so little of the transaction to writing, the fact that so much must depend on the credibility and accuracy of witnesses speaking of remote transactions, is of course a consideration which clearly indicates the difficulty of arriving at the true facts of a transaction of this sort.
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In this case, as has been stated by counsel, it will be important for you to observe the acts of the parties, whatever there is of record, whatever there is that is probable or improbable in the statement of witnesses, what was their apparent intention in regard to it, and whatever there may be to guide you in arriving at certain and correct results.
In regard to these three notes, which it is said on the part of the defendant were given for the purchase of the Winslow timber, I think you will find upon examination of these two notes which have been introduced in evidence here, that if the notes were given on one, two and three years, or about that time, that they were to fall due in about one, two or three years, or something near that time; then that the first of the series — the one that fell due in one year — is missing and not the one that fell due in three years.
The notes which are produced here are dated in January, 1853. The first note produced here falls due in one year from the last day of February, 1851, which would be February, 1855. It is dated in January, 1853, so that it falls due in a little more than two years after its date.
The second note is the same date, January, 1853, and falls due in one year from , 1855, and therefore falls duo in 1856, a little more than three years from its date. So that if the defendant is correct in his statement, that three notes were given towards the payment of the Winslow timber, and is correct that they fell due in about one, two aud three years, then he could not be correct in his statement that the third note is missing, and that an indorsement of his half is on that note. The two statements cannot be correct: which is correct is for you to determine.
“In regard to the Winslow notes, Mr. Merrill, the defendant, says the notes were given on one, two and three years. If he meant one, two and three years from date, then of course your Honor is right; but if he meant payable one year apart, that is, one, two and three years from a future date, then I suggest to the court that there is no discrepancy in the defendant’s testimony.’
In addition thereto, if the Gallison mortgage was not given for one-half of that note, what was it given for ?”
Court : “I don’t think I will change the ruling in regard to that.”
The verdict was for the plaintiff; and the defendant alleged exceptions.
I. I examined the book with no reference to its being evidence. The gratification of my curiosity did not make the book evidence.
II. I object to the phrase, “as stated by counsel.” Whenever a judge uses this phrase, the jury immediately determine which counsel and, having determined, they at once put the judge upon that side and, so not to be at variance with the judge, put their verdict upon the same side.
III. The judge argues the case upon the Winslow notes, and starts out with “I think.” The jury, as is their custom so in this case, substituted the thoughts of the judge for the testimony. In this part of the charge, he interpolated not intentionally the word “about.” The testimony was “the notes were payable in one, two and three years,” not “about.” True the notes were not payable in any exact number of years from the date, but from a future time, and so the judge interpolated the word “about.” The witness only intended to testify to the fact that the notes were payable in a certain number of years, not from date, but from a future time, and were payable one jmar apart; and in this view, his testimony was correct and his defense made out; and yet the judge told the jury that his testimony in regard to the missing note could not be correct, and caused them to believe that the defendant had willfully falsified and threw distrust over his whole defense and lost him his case.
1. The plaintiff had the right to put in the book. It would give an unconscionable advantage, to enable a party to pry into the affairs of liis adversary for the purpose of compelling him to furnish evidence against himself, without at the same time subjecting him to the risk of making whatever he inspects evidence for both parties. 1 Grreenl. on Ev., § 563. Penobscot Boom v. Bamson, 16 Maine, 224. Blake v. Buss, 33 Maine, 360. The rule applies even where the party calling is mistaken as to the contents of the instrument called for. Clark v, Fletcher, 1 Allen, 53. The book being in evidence, it became the duty of the court to admit so much of the deposition as was explanatory thereof. There was nothing that the defendant was aggrieved by in the admission. The law court will not presume in favor of the exceptions. Webster v. Folsom, 58 Maine, 230.
II. The exception to judge’s charge. No evidence is reported. No facts involved in the case are presented except as shown in the charge. The court will not presume error. McOriUis v. Hawes, 38 Maine, 566. Weal v. Paine, 35 Maine, 158. Beemanv. Law-ton, 37 Maine, 543. Whidden v. Seelye, 40 Maine, 247. There was nothing reported in the evidence to show that question of the notes was material.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
