Corder v. Talbott

Gjr.eeN, PRESIDENT,

delivered the opinion of the Court:

The first question raised by this record is: Did the circuit'court err in excluding from the jury the proposed evidence of Emma Poling, as set out in the bill of exceptions? It is true, as said by the appellee’s counsel, that the excluded evidence could have probably had very little weight with the jury, and that taken in connection with Talbott’s, those portions of Emma Poling’s statements, that were permitted to go to the jury, really must have had as much, or nearly as much, weight with the jury as the entire statement of Emma Poling would have had, if it had all been allowed to go to the jury; and that therefore the defendant was not probably materially injured by its exclusion, even had it been proper testimony; and that the testimony certified by the court as all that was submitted, if this excluded testimony be included and considered, shows that the verdict was such as could not be set aside; and therefore it is contended this Court ought not to reverse the judgment, even if the court did err in excluding this evidence.

This position of counsel cannot be sustained. It is true, Syllabus 1. as shown by the decisions in Virginia and in this State that the Court will not reverse a judgment, merely because the court misinstructed the jury, when all the facts proven in the case are in the record, and it appears thereby that the appellant could not have been injured by the misinstruction. See Insurance Company v. Hendren, 24 Gratt. 536 ; Colvin v. Menefee, 11 Gratt. 87 ; Pitman v. Breckenridge, 3 Gratt. 127 ; Clay v. Robinson, 7 W. Va. 350 . It is also true, that in the trial of an issue out of chancery, though the court refuse to permit *285 evidence to go to the jmy that ought tojhave been permitted to so go, still if the court.on all the evidence is satisfied thatthe verdict ought not to have been different, had the rejected evidence been admitted, it will not grant a new trial, merely because of such improper rejection of such evidence. Powell et ux v. Manson, 22 Gratt. 192 ; Tompkins’s ex’r v. Stephens et al., 10 W. Va. 156 .

But these decisions are expressly based on a diversity in the rule in such a case between the trial of a common law and chancery issue, as explained by Lord Eldon in Barker v. Ray, 2 Russ. 63. He there says, speaking of the chancery court: “This court in granting or refusing new trials proceeds upon very different principles from those of a court of law, and that it has been ruled over and over again, if on an issue a judge refuse evidence, which ought to have been received, or receive evidence, which ought to have been rejected, although in that case a court of law would grant a new trial,'yet if this court is satisfied the verdict ought not to have been different, it will not grant a new trial merely pn these grounds.”

¥e must therefore decide, whether the court erred in rejecting the portion of the evidence of Emma Poling, which it did reject. If w.e confine ourselves in the consideration of th;s question to what is set forth in the bill of exceptions to the rejecting of this evidence, we would come to the conclusion, that the whole of the evidence of Talbott and of Emma Poling ought to have been rejected by-the court, including of course that part of her evidence which was rejected.

Their evidence was, so far as the exception shows, offered to prove, that some time in the fall of 1868 Thompson called upon Talbott to go his security on this proposed bond. The issue being tried was, whether Talbott had signed this bond for $1,000.00 dated October 3, 1868. This exception under consideration does not show, what proof the plaintiff offered to prove the issue on his part. It may, so far as this exception shows, have been simply *286 the proof of the handwriting of the defendant Talbott. ‘ On such an issue sustained by such evidence it would seem to be self-evident, that the declarations of the defendant Talbott made to third persons, either before or after the date of the bond, that he had refused on Thompson’s application to sign the bond, would be improper evidence to go to the jury. It would not only have been irrelevant, but would be clearly liable to be excluded as res inter alios acta. And it seems obvious, that the fact, that this declaration by Talbott of his refusal to sign the bond, would be equally improper, when the declaration was shown to have been made to his co-defendant, Thompson, as when made to any other third party. The plaintiff could no more be properly affected by such declaration in the one* case than in the other. In either'case it was; so far as the plaintiff was concerned, res inter alios acta. If then we confine ourselves to what is set forth in this exception, the rejection of a portion of the evidence of Emma Poling was not only right, but if the plaintiff had asked the court to reject all the evidence of Talbott and all the evidence of Emma Poling, as stated in that exception, the court ought to have rejected the whole of it, as irrelevant and improper evidence.

As a general rule, the facts stated in one bill of excep--tions cannot be noticed by an Appellate Court in considering another, when the first bill of exceptions does not refer to the second. But to this general rule there is this exception : when a bill of exceptions is taken, after all the evidence has been submitted to the jury, and it purports to set out all the evidence,- the evidence set out in this bill of exceptions may be looked to in considering the question raised in another bill of exceptions taken in the progress of the trial. See Hall v. Hall, 12 W. Va. 1 .

The case under consideration comes under this exception ; and we have a right in acting on this first bill of exceptions to look to the bill of exceptions to the refusal of the court to grant a new trial, in which all the evi- *287 (lenco in the eau.se is certified. When we look to this, we find, that the plaintiff to sustain the issue on his part proved by Thompson, that the plaintiff having required of him at Phillippi, on October 3, 18(18, the day the bond was given, security upon the bond, he got on his horse and went out to the defendant Talbott’s house, about a mile from Phillippi, and when he got there the defendant, Talbott, was in his office upstairs, and he went up to his office and found him there and asked him to sign this bond. Pie was at first unwilling to do it; but after Thompson had made an explanation to him, he signed the bond in Thompson’s presence.

While the evidence of the defendant, Talbott, and witness, Emma Poling, was, as we have seen, not proper testimony directly upon the issue of non est factum being tried by the jury, it was to the extent the court permitted it to go to the jury, evidence to impeach the credibility of the plaintiff’s most important witness, Thompson, and to contradict his statement made to the jury. It was for that purpose proper to permit the defendant, Talbott, to say, that, in the interview he had with Thompson that day, he refused to sign this bond, and ho then rode away without obtaining his signature, as Thompson had testified, that in the only interview he had with him that day, he was at first unwilling to sign it but afterwards consented and did actually sign it.

The question for our determination is: Ought the court to have permitted the witness, Emma Poling, to have testified, that while she did not hear Talbott refuse to sign this bond, but only heard him say “I can’t” without knowing what he was talking about, or what he meant, that immediately after Thompson rode away, when Talbott reached the porch of the house, thirty yards from where this.conversation took place, Mrs. Talbott asked him what Thompson wanted? and Talbott replied, “that he wanted him to go on a note with him to the plaintiff, Cordor, for $1,000.00, and that he had refused to do so.”

It has been laid down by some text writer’s of high *288 authority, that to make the declarations of a party evidence in his favor, they must be connected with the material fact of enquiry under investigation. This rule is illustrated in the case of Tompkies et al. v. Reynolds, 17 Ala. 109 , where the court approves this rule and lays down the law thus : “To make the declarations of a party evidence in his favor as a part of the res ye she, they must be connected with the material fact or enquiry involved in the issue.”

In that case James A. Hagan obtained from the plaintiff his two notes amounting- to $1,750.00 on third parties ; and he executed a receipt therefor, which he signed James A. Hagan & Co., and in which it was stated: “we are to collect these notes or return them to Reynolds, with interest from the time they were due.” Tompkies and Hardy were members of the firm of James A. Hagan & Co. The plaintiff contended^ that the understanding was, he lent these notes to the firm, Hagan, one of the partners, acting for them, with the understanding that if they could collect them they were to have the use of the money as so much borrowed money, if they could not collect them, the notes were to be returned. The plaintiff proved by a witness, Leeper, that he had the possession of these notes for collection, that he had collected $1,400.00 on them, and by Hagan’s direction applied $700.00 to the payment of debts of James A. Hagan & Co. The defendants Hardy and Tompkies then asked the witness from whom he got these notes; he replied, from Hardy. They’ then offered to prove by the same witness, that at the time Hardy handed him the notes for collection, he said : “he was acting at the request of Hagan and as his agent.” But the court would not permit this evidence to go to the jury ; the contention of the defendants being that this whole transaction was a private transaction of Hagan, and that the firm was not bound by the receipt given in their name by Hagan. In the opinion ofthe court, delivered by Dargoiu C. J., on page 118 he says : •

*289 “The declarations of Hardy were intended to show, that the firm did not consider it a loan of money, but as an undertaking on the part of Hagan to collect the money for the plaintiff. The general rule is, that the declarations or admissions of a party in possession are admissible as a part of the res gestw to show the character of the possession. But to make such declarations evidence, they must be connected with the principal fact, under investigation. If the fact, with which they are connected, is not the material enquiry, or if the party is not sought to be charged because of the existence of the fact, with' which they are connected, they cannot be admitted as evidence. On this subject the best writers say, that to make the declaration of a party evidence in his favor, they must be connected with the material fact or enquiry under investigation. 1 Grcenl. Ev. SI 09, 158; 1 Phillip’s Ev. 231. By this rule, we think, the declarations of Hardy were properly excluded.

“The material fact was not, whether he had actually had the possession of the notes, or whether he handed them to the witness, but whether tlie contract was binding on the firm. The plaintiff did not seek to show the contract was binding on the firm because Hardy had had possession of the notes, or because he handed them to the witness for collection, but this proof was introduced by the defendant, Hardy, himself, and to permit him to introduce his own declarations in connection with a fact not relied upon by the plaintiff to fix his liability, nor connected with the material fact involved, would be to enable the defendant to make his own declarations evidence in his favor, where the fact, with which they arc connected, is not brought out by the plaintiff, nor the ground on which he is sought to be charged.”

If there be any defect in this reasoning, and I am not prepared to say that there is, it can only be in the Judge assuming that the fact, in connection with which the dec-olarations of the defendant were offered as evidence, was *290 a tact not connected with the material fact at issue in " the case.

In the case before ns we have seen there is no difficulty in saying that the fact, in connection with which the defendant’s declarations were proposed to be admitted, was in no manner connected with the material fact at issue in the .case, that is, whether the defendant had signed the bond. The defendant’s declaration, that he would not sign it, is in no manner connected with the material fact at issue. It is a circumstance, as we have seen, in itself so unconnected, that it would not have been given in evidence as direct evidence on the trial of this issue ; and it was only admissible as a collateral fact to contradict one of the plaintifl’s witnesses. And therefore they being declarations of a party in his own favor, though a part of the res gestas, of a collateral fact introduced into the case merely to contradict a witness of the other side, but no way otherwise connected with the material fact or enquiry in volved in the issue, were not admissible. '

There are other grounds on which the declarations of syllabus 3. the defendant to his wife made in the presence of the witness Poling in this case ought not to have been admitted. If the question at issue had been : Did the defendant in his conversation with Thompson in front of the house refuse to sign the bond ? The' declarations of the defendant made very shortly after Thompson left that he had so refused, would not have been a part of the res gesta; and as such admissible. When the declarations are merely a narrative of a past occurrence, though made ever so soon after the occurrence, they cannot be received as proof of the existence of such occurrence. Such declarations constitute no part of the res gestee. As illustrations: the demand of the payment of such a check cannot be proven by a witness proving that he saw the holder of it go into the bank, and upon his coming out he declared, that lie had demanded payment of the check. See Brown v. Lusk, 4 Yerg. 210 . So on an indictment for' keeping a house of ill fame. _A witness proved he *291 watched the house one night. He saw some men come out of the house, and immediately on their coming out one of them spoke in conversation with the other of his having intercourse with one of the inmates of the house. The court held that such conversation was no part of the res gestee, and ought not to have been received in evidence. See Oommomoealth v. Harwood, 4 Gray 41 . I apprehend the case would not have been altered, if the witness had further said, he heard this person speak in the house to an inmate in the house, but that what he said was unintelligible.

The case before us seems to me to fall within this principle, nor is it removed from its operation by the fact, Syllabus 4. that the witness, Poling, heard in this conversation between the parties the words “ I can’t ” — words in themselves utterly unintelligible. These cases are readily distinguishable from the ordinary case of a prisoner declaring immediately after the killing of a man how he committed the act. In such case a material part of the en-quiry is, what were the prisoner’s motives or feelings, and his declarations immediately afterwards tend to show these feelings; and for this reason they are admitted. They are in such case not a mere recital of a past occurrence. The act here was the refusal by the defendant to sign this bond. Such an act in its very nature cannot be illustrated, explained or characterized by any declarations of the defendant. It in this respect seems to me like the act in Nutting et al. v. Page, 4 Gray 584 . The question being tried was, whether a new dam had been raised higher than an old dam, which had been destroyed, so as to overflow more of plaintiff’s land. The plaintiff endeavored to show, that the old dam was curved downward in the centre and thus was lower than the new, which was not so curved. And he offered to prove that the master workman, when erecting the old dam, stated a reason for building it with a curve in the center. But the court held, that this evidence was inadmissible ; its object was not to illustrate, explain or characterize the *292 act; but its purpose was to prove the fact itself, that the ' dam was so curved, a fact which should be proved by direct testimony, and not by declarations of the master workman, though made whilst he was building the dam. It was not a case, in which such declarations were competent evidence as a part of the res gedai.

Ho here the declarations of the defendant are not introduced to illustrate, explain, or in any manner qualify the fact of his refusal to sign this bond ; but their real and only purpose is to proveí the. fact itself, that he did so refuse. It cannot be so proven. It is not a ease, in which such declarations can be competent as a part of the re.n gesiai.

I am therefore of the opinion that the court did not err in rejecting this evidence.

The remaining question tor our consideration is: Did the circuit court err in refusing to grant a new trial in this case, because the verdict was contrary to the evidence or unsupported by the evidence, ? There, is really no difficulty in disposing of this question. The verdict of the jury is fully supported by the direct evidence of Thompson, corroborated by the evidence of Corder and and his Former counsel and to some -extent by the brother-in-law of the defendant, Talbott, and of Thompson, by portions of the evidence of the defendant, Talbott, himself, and also to some extent by the testimony of ail the plaintiffs witnesses aforesaid, and of the brother-in-law of Talbott and Thompson to the effect that they were acquainted with Talbott’s signature, and believed that the signature to the bond was his genuine signature. It is true the defendant’s testimony, taken by itself, would clearly show the verdict to be wrong. ■ The defendant, Talbott’s, evidence, is irreconcilable with the justice of this verdict; and it is a direct contradiction of the evidence of Thompson, and it is supported by the evidence of his servant, Poling, and to some extent by the evidence of the nine witnesses, *293 who to a greater or less extent were acquainted with the handwriting of Talbott and did not believe his signature to the bond to be genuine.

On familiar principles, often recognized by this Court in such a ease of contradictory evidence sustained apparently by other evidence tending to directly opposite conclusions, the court ought not to interfere with the verdict of the jury. Had the verdict of the jury been for the defendant, it could not in such a case have been properly set aside, nor can the verdict in favor of the plaintiff be disturbed. The principles, which in such cases govern the granting of new trials, are so familiar, that it is unnecessary here to repeat them. They are illustrated by very many oases, among them, by R. F. & P. R. Railroad Co. v. Snead, 19 Gratt. 354 ; Campbell v. Lynn & Co., 7 W. Va. 655 ; Miller v. Insurance Co., 12 W. Va. 116 ; Shrewsbury v. Miller, 10 W. Va., 115 .

It. is obvious, that in a case of so much doubt it ivould have, been grossly unjust to have permitted the verdict of the jury to have stood, had the court refused to have permitted any proper testimony , to go to the jury. But the court in this case committed no such error.

It is further contended by appellant's counsel, that the record should show affirmatively that the parties to the bond as obligors were sued separately, for if they were sued jointly, the judgment should be for or against both. The record does show clearly, that the obligors were sued separately. The parties to this suit, as shown by the record, are James W. Corder, plaintiff v. Elam D. Talbott, defendant, and not against Talbott & Thompson. This suit was instituted March 4, 1871; and the judgment was confessed by Thompson on January .30, 1871; and it is so expressly alleged in 'the declaration. And of course it could not have been in this suit, that this judgment was confessed.

The judgment of the circuit court rendered on the 20th day of November, 1875, must therefore be affirmed; and *294 tbe appellee must recover of tbe appellant bis costs expended in this Court and damages according to law.

The Other Judges Concurred.

JUDGMENT AeEIRMED.