Bridgman v. Estate of Corey

Certified transcript of stenographic notes as evidence. Different claim on former trial may be shown. Immaterial facts. Use of microscope the subject of expert testimony. 1. A certified transcript of the stenographic notes of an official court stenographer in this State is receivable as evidence under E. L. s. 816, although such transcript was not filed with the clerk, or made under a special order of the court. 2. The question being whether the intestate was at Hardwick the last of May, with a stranger, whom the evidence of the plaintiff on this trial indicated to be a Mr. Putnam, held, permissible for the defendant to show that, on a former trial, the plaintiff introduced witnesses to prove that this stranger was a different person. 3. The note in suit was taken by witness Bridgman as the agent of the plaintiff. The defendant claimed that the note was forged by witness, who, on his cross-examination, was asked to and did write a copy of the note. Held, that this copy ivas not admissible “ for the purpose of showing that witness disguised his hand, and did not write an honest copy.” 4. E. T. Bridgman liad been a witness before tbe commissioners when this note was presented for allowance. Held, that the trial court might exclude the question, “ Did you testify to all the particulars of what transpired there when you testified before the commissioners ?” 5. The plaintiff claimed that she loaned the intestate the money for which the note was given at a certain time when he was at Hardwick. Held, that the wife of the intestate’ could not be inquired of whether the intestate brought home that amount of money on that occasion, although she was familiar with and assisted in the management of all his business. 0. E. T- Bridgman testified that he had acted as the agent of the plaintiff in all he had done with reference to the taking and collection of this note. Held, not permissible to prove that, after the death of intestate, he went to a third party and requested him to take, and pretend to own, and present this note against the estate. 7. The plaintiff claimed that the intestate borrowed this money at five per cent for the purpose of reloaning it at six. Held, that the tax inventory of the intestate, made the year after the note was given, was not admissible to show that he claimed no deduction for debts due on this account, nor that the intestate, when the note fell due and remained unpaid, had a large sum on deposit, on which he only received four per cent; nor that the intestate was then afflicted with a disease which he knew to be mortal, and was engaged in settling all his affairs. 8. Where, in case of a witness offered as an expert, his undisputed testimony clearly shows that he issuch expert, the other side makes no question in that respect, and the court, in excluding his testimony, bases its action expressly upon the ground that the matter to which the witness is offered cannot be the subject of expert testimony, the exceptions need not affirmatively show that the court found the witness to be an expert. 9. One having skill and experience in tbe use of the compound microscope may testify, as an expert, to what he sees through it, although the object to be looked at and the microscope are both in court, and the examination is made by the jury also.

Assumpsit for the amount of a promissory note. Plea, the general issue, with notice that the defendant would, on trial, deny the signature. Trial by jury at the February Term, 1889, Orleans County, Taft, J., presiding. Yerdiet and judgment for the plaintiff. Exceptions by the defendant. The case had been once tried before. On this trial it became material to show what certain witnesses testified to upon the former trial, and for that purpose the defendant offered a duly certified transcript of the stenographer’s notes, taken upon such former trial, which was excluded. The transcript so offered was not made under order of the court, and was never filed in the clerk’s office. The testimony of the plaintiff tended to show that just before his death the intestate was at the village of Hardwick, where the plaintiff resided, and inquired for her for the purpose of paying the note, and that he came in company with a third person. Upon this trial the plaintiff’s evidence indicated that this third person might have been Mr. Putnam from Montpelier. Thereupon the defendant proposed to show that upon the former trial the plaintiff claimed that this person was a Doctor Walton, and had introduced two witnesses to that effect. The plaintiff claimed to have taken this note through her agent, F. T. Bridgman. It was agreed that the said Bridgman wrote the body of the note, and the defendant claimed that he forged the signature. He was improved as a witness by the plaintiff, and, on his cross-exanjination, was asked to and did write a copy of the note in suit. This copy the defendant after-wards offered in evidence “for the purpose of showing that when asked to write this copy he disguised his hand, and did not write an honest copy.” The said F. T. Bridgman testified that all he had said or done with or about this note and its collection, he had done as the agent of the plaintiff. Upon the trial the plaintiff introduced one Dorman Bridgman as a witness, who testified that after the death of Dr. Corey the witness, F. T. Bridgman, had come to him and wished him to take this note in suit, and pretend to ■own it and present it against the estate of Dr. Corey. The witness, F. T. Bridgman, had previously, in his testimony at this trial, denied having any such conversation with the said Dorman Bridgman. The defendant claimed that this testimony was admissible for two purposes, first, to contradict the witness, F. T. Bridgman, and, second, on the main issue, as tending to show that if this note had been an honest one, a third party would not have been solicited to take it and become its owner for the purpose of presenting it to the commissioners. The court admitted it on the first ground, but held that it was not admissible for the second purpose, to which the defendant excepted. The plaintiff introduced one Miles as a witness, who testified that in the spring of 1883 he went to Dr. Corey for the purpose of borrowing some money, and that Dr. Corey then told him that he had no money to loan himself, but that he was going to-pay Carrie Bridgman, the plaintiff, some in a few days, and that he could probably get it of her. In reference to this testimony, the defendant offered to show by Mrs. Corey that at that time Dr. Corey had a large sum of money lying idle, and that soon after he deposited in the bank nearly two thousand dollars, upon which he only received four per cent interest. The defendant offered in evidence a tax inventory made by Dr. Corey in the spring of 1882, to the listers of Craftsbury, where he then resided and was a tax-payer, for the purpose of showing that he did not offset the debt of three hundred dollars as an indebtedness. The defendant proposed to ask the witness, E. T. Bridgman, this question, which was excluded: “ Whether, after Dr. Corey’s death, and the commissioners-had met, you had a conversation with Mr. Perley, in which Mr. Perley asked you what had become of the account against Corey’s estate ?” The defendant also offered to -show that the intestate died1 some weeks after this note became due; that for some time before his death he was very feeble; that he knew his disease was a mortal one, and was engaged in settling his affairs. The plaintiff claimed that the note in suit had been written by the witness, E. T. Bridgman, upon a piece of paper upon which, there had been no writing previous to the writing of the note thereon, a clean piece of paper. The defendant maintained that there had been writing in pencil, which had been erased before the note was written in ink. Upon this point the defendant improved one Ames, who testified that for several years he had been largely engaged in the examination and comparison of handwriting; that in this he frequently made use of the compound microscope, and that for "the past five years lie had made almost daily use of it in the ■examination of papers. He further testified that one unacquainted with the use of the compound microscope could make no use of it in such examination, but the court did not find this to be the_ fact. He further testified that one having intelligence ■and judgment in the use of the different object glasses, he supposed might use it. The defendant offered to show by this witness that he made •an examination of the surface of the paper upon which the note in suit was written, under the compound microscope ; that such ■examination revealed the traces of pencil marks in certain portions, and that the fibre of the paper over the entire surface had the appearance of having been broken by being rubbed' before the ink was laid on. The court held, however, that •expert testimony was not competent for this purpose, that the microscope which was there in court could be used -by the jury themselves, and excluded the testimony. The compound microsc >pe was in court and the jury were permitted to use the same in the examination of the note in suit. The nature of the other exceptions appears in the opinion. R. L. ss. 810, 812 and 816 are as follows: Sec. 810. “The presiding judge of each County Court and the chancellor of the Court of Chancery in each county, may each in his discretion, appoint and employ a stenographic reporter, to make a verbatim report of the proceedings of either of said courts, at any term thereof; and of such proceedings in hearings before auditors, referees and masters in chancery, as either such presiding judge or such chancellor may order to be reported, for the use and convenience of said courts and of parties having business therein. The judge or chancellor may discharge such reporter at any time.” Sec. 812. “ Such reporter shall be sworn before entering upon his duties, and shall be responsible for the correctness of his reports, and all copies thereof made by him or under his direction and certified by him to be correct.” Sec. 816. “ All transcripts of evidence, or proceedings, in any cause or hearing tried in either of such courts, or in any •cause or hearing tried before an auditor, referee or master in chancery, ordered to be reported by the presiding judge or the chancellor, and made by, or under the direction of, said reporter, and duly certified by him to be a verbatim transcript of his verbatim stenographic notes of such evidence or proceedings, shall be received as evidence in any court in any cause, where the subject matter would be admissible under the rules of evidence.” The transcript of the stenographer’s notes should have been admitted. The statute makes him an officer of the court, and expressly provides that a transcript of his notes duly certified shall be received as evidence. R. L. ss. 815, 816, 810. Quinn v. Halbert, 57 Yt. 178. State v. Hannett, 54 Yt. 88, is not in point. There no transcript was offered, but the stenographer himself was called to read his notes. Tiie defendant should have been allowed to show that the-plaintiff introduced testimony on the former trial to prove that the stranger with Dr. Corey was a different person from the one indicated by her evidence on this trial. It is always permissible to show that a party has made claims inconsistent with those he makes on trial. Lander v. Seaver, 32 Yt. 114, 125 ; JSTye v. 1Werriam, 35 Yt. 445; Hotchkiss v. Ladd, 43 Yt. 353.' It was proper to ask the witness, F. T. Bridgman, whether he had testified to all that took place before the commissioners. Briggs v. Taylor, 35 Vt. 68. The amount of this note was but three hundred dollars, and the plaintiff claimed that the intestate borrowed it at five per cent to re-let it at six. In view of this claim it was permissible to show that-he asked no deduction in his tax inventory, that he was a wealthy man and that, when this note fell due, had some thousands on deposit, upon which he received but four per cent interest; that he was for some time before his death conscious that his disease was- a mortal one, and carefully settled-all his business affairs. All these circumstances render improbable the facts asserted by the plaintiff, and lienee are admissible. Richardsons. Turnpike Go., 6 Yt. 504; Downer v. Bowen, 12 Vt. 454; Kirkaldie v. Paige, 17 Vt. 260 ; Hard v-Brown, 18 Vt. 97; Houghton v. Clough, 30 Vt. 312; Kim-ball v. Locke, 31 Vt. 683 ; Frost v. Frost, 33 Vt. 640; Bidder v. Smith, 34 Vt. 294; Strong v. Slicer; 35 Vt. 43 ; Henry v. Huntley, 37 Vt. 316 ; Thayer v. Davis, 38 Vt. 164; Brown v. Welch, 38 Vt. 241; Hiñe v. Pomeroy, 39 Vt. 219; Hardy v. Cheney, 42 Vt. 421; Bennett v. Stacy, 48 Vt. 163 ; Davis v. Windsor Savings Bank, 48 Vt. 540 ; Bead v. Bead, 56 Vt. 493. As the agent of the plaintiff, F. T. Bridgman asked Dorman Bridgman to take this note and pretend to own it and present it against the estate of Dr. Corey. If the plaintiff had done this herself it would have been permissible to show it. It is equally so when she acts through her agent. 1 Greenl. Ev. (12th Ed.), s. 113 ; Baldwin v. Doubleday, 59 Vt. 7. Ames should have been permitted to testify as to what an examination with the microscope revealed. The court assumed that he was an expert, and from his undisputed evidence he clearly was. Hence that question cannot be raised here. 1 Greenl. Ev. (12th Ed.), s. 2; 1 Best Ev. (Wood’s Ed.) [102], s. 81. The court below ruled that there was no such thing as an expert in the use of the compound microscope ; that the jury should take it and look for themselves. This was error. The use of the microscope requires both skill and experience; it reveals nothing save in the hands of an expert. If not the subject of expert testimony, then practically it must cease to be an instrument of evidence. As to when the testimony of experts 'may be used, see 1 Greenl. Ev. (12rh Ed.), s. 440; 2 Best Ev. (Wood’s Ed.) [*649], s. 513 ; Union Pacific B. B. Co. v. Clopper, U. S. 26, L. Ed., p. 243; Eastern Trans. Line v. Hope, 95 H. S. 297, 24 L. Ed. 477; State v. Phair, 48 Vt. 377 ; Cram v. Cram, 33 Vt. 18 ; Sturgis v. Knap>p, 33 Vt. 531; Dean v. McLean, 48 Vt. 421 ; Masons v. Fuller, 45 Vt. 29 ; Bemis v. B. B. Co., 58 Vt. 640, 641. The transcript was not admissible. It did not appear that the stenographer was sworn, nor that the transcript was ordered to be reported by the presiding judge. It is only in the latter case that the statute makes it evidence. State v. Hannett, 54 Vt. 88; R. L. s. 812; Webster v. Golden, 55 Me. 165; .Reid v. Reid, 14 Pac. Rep. 490; 22 N. E. Rep. 89 ; R. L. s. 816. The copy of the note was properly excluded. It was not •offered as a standard for comparison, and it is doubtful whether it could properly be used as such in case it had been. Chandler v. LeBarron, 45 Me. 534; King v. Donahue, 110 Mass. The inventory wa's a declaration of the intestate in his own favor and inadmissible. Ellis v. Cleveland, 55 Vt. 358; Jude-vine v. Weeks, 57 Vt. 278. The court did not find that Ames was an expert in the use of the microscope. That fact must affirmatively appear, before this court will reverse the judgment because his testimony was excluded. Crane v. Korthfield, 33 Vt. 124; Carpenter v. Corinth, 58 Vt. 214. The court might in its discretion refuse to allow the putting to the witness Bridgman the general question, “ Did you testify to all the particulars of what transpired there when yon testified before the commissioners.” Counsel should have limited the inquiry to a given particular. The state of Dr. Corey’s health and the amount of money he had on deposit at a given time were immaterial. Strong v. Slicer, 35 Vt. 43; 3 Vt. 153; 30 Vt. 277; 48 Vt. 578; 56 Vt. 710; 58 Vt. 665; Stimpfler v. Roberts, 18 Penn, St. 233; Atwood v. Scott, 99 Mass. 177; Hilton v. Scarborough, 5 Gray, 422. The fact that E. T. Bridgman requested Dorman Bridgman to take and pretend to own this note was properly excluded. It ■does not appear that the plaintiff ever instructed her agent to do this, or knew that he had done so. Declarations of the agent after the execution of the note could not be given to impeach its character. Baldwin v. Doubleday, 59 Vt. 7; 52 Vt. 409; 23 Vt. 129.