Parks v. Mosher

SyMONds, J.

The rulings, to which exceptions are taken in the present case, find some support in the opinion of the court in Cragin v. Carleton, 21 Maine, 492, and perhaps they do not go further than that authority warrants, although the two cases are not precisely the same. It is clear, too, that they have some advantages in point of practice; — affording no opportunity to do away with the effect of record admissions by ingenious explanations.

But, however that maybe, we think they cannot be reconciled, in their full scope, with correct and well settled principles of evidence.

The question here is whether the defendants were in fact partners at a particular time, not whether they so held themselves out. "The only question presented to the jury was whether the defendants were partners, or not.”

The earlier judgments were received in evidence, not as judgments, but as admissions of record on the part of defendants that they were partners at the date when such judgments were rendered on default, or rather when the liability in those cases was assumed, and as tending, therefore, to prove that they were *306 partners at the date of the transactions involved in this issue. If they were received as admissions only, why is it not competent to state in explanation all the circumstances under which the admissions were made ?

If the fact was, that, as between Mosher and Lancey, the debts sued in the former actions were due only from Mosher, and were defaulted without Lancey’s knowledge, and settled by compromise to which he was not a party, or if Lancey suffered himself to be defaulted on Mosher’s agreement to pay the judgments, admitting them to be his individual debts, which agreement was carried out in good faith, no reason appears why these facts might not be shown in a subsequent suit in which the record is offered in evidence by another plaintiff;— as tending to explain the admission contained in the record. To hold otherwise would give to the former judgment, between other parties, the weight of a judgment in evidence in this case, to which it is not entitled. It is only received here as an admission.

Suppose, for instance, the earlier judgments had been rendered against the defendants as partners on the ground that, while not partners in fact, they had so held themselves out to the plaintiffs in those suits; or suppose this was the reason for submitting to a default.

In such case, in a subsequent suit by another plaintiff, it is clear that the judgments, when offered as admissions of the fact of partnership, must be open to explanation; and when explained according to the fact they might have little or no tendency to serve the purpose for which they were introduced.

"When admissions in deeds are offered in evidence by a stranger, .... the adverse party is not estopped, but may repel their effect in the same manner as if they were only parol admissions.” 1 Greenl. on Ev. § 211. "When a record is admitted in evidence in favor of a stranger, against one of the parties, as containing a solemn admission, or judicial declaration, by such party, in regard to a certain fact, it is received not as a judgment conclusively establishing theffact, but as the deliberate declaration or admission of the party himself that the fact is so. It is therefore to be. treated according to the principles governing admissions, to which class of evidence it properly belongs.” 1 Greenl. onEv. § 527, a.

*307 " The qualities of an estoppel, wbicb are imputable to a party’s pleas, so far as concerns tbe particular case in which they are pleaded, are not imputable to such pleas when offered in evidence collaterally.” 2 Wharton on Ev. § 1117.

"The pleadings of a party in one suit may be used in evidence against him in another, not as estoppel, but as proof open to rebuttal and explanation, that he admitted certain facts.”' 2 Wharton on Ev. § 838.

In the case City Bank of Brooklyn v. Dearbon, 20 N. Y. 244—not unlike this in many respects — the court say: "The judgment, being by default, did not conclusively establish, in another suit, the fact of a partnership. Nevertheless, that very default was some evidence that they both considered themselves liable to pay another note given by the same partnership name and at about the same time with the one in question.”

In Cragin v. Carleton, supra, Whitman, C. J., says, delivering the opinion of the court: "The effect of judgments is never to bo explained by parol; and surely not by the declarations of the parties to them, in opposition to what is obviously imported by them.”

This is undoubtedly true where the record offered has the effect of a judgment in the case on trial; but if for the word, judgments, as used in this sentence, the words, admissions of record, be substituted — and that is to state correctly the character of the evidence in the present case — the language employed by the learned Chief Justice would at once be seen to be inapplicable. Parsons v. Copelavd, 33 Maine, 370-374.

Although the character of the evidence offered at the trial,, does not make this a very strong case against the ruling as given, still it seems that logically and on the best authority some of the • testimony excluded was admissible, in explanation of the effect of the judgments as admissions of the defendants.

^Exceptions sustained.

Walton, YirgiN and Peters, JJ., concurred.