Whitney v. Houghton

Endicott, J.

At the trial, the defendant was allowed to prove that, in an interview with a witness on May 2, the fact that he had then sold the cow to the plaintiff was the subject of conversation. This evidence had a material bearing upon the question, when the sale took place, which was in dispute between the parties. The presiding judge admitted the fact that there was such a conversation, but refused to allow the witnesses to testify to what was said. But the character of the conversation cannot be changed by thus describing it. From the fact that there was such a conversation, it is evident that the defendant had stated to the witness that he had sold the cow to the plaintiff, and she was no longer his property. The witness was an assessor of Harvard, who visited the defendant on that day for the purpose of taking an account of the defendant’s taxable property, and it does not appear that he had any knowledge whatever of the sale, except that derived from his conversation with the defendant. It was not competent therefore for the defendant to put in his own declarations made to a third party. Marcy v. Barnes, 16 Gray, 161 , 163. Lucas v. Trumbull, 15 Gray, 306 . Blood v. Sanderson, 4 Gray, 586 . Woodward v. Leavitt, 107 Mass. 453 Nourse v. Nourse, 116 Mass. 161 .

*453 In Earle v. Earle, 11 Allen, 1 , two witnesses were called to prove what took place on a particular occasion, and the fact that they then had a conversation on a certain subject was held to be competent, on the ground that it would tend to show that they were testifying to the same occasion. In Commonwealth v. Sullivan, 123 Mass. 221 , relied on by the defendant, a witness, who testified to a sale of intoxicating liquor, was allowed, for the purpose of fixing the time when the sale took place, to state that he testified to the same sale before the magistrate. But neither of these cases has any application to the case at bar.

Exceptions sustained.