Williams v. Culver

Mr. Chief Justice Bean,

after stating the facts, delivered the opinion of the court.

1. Upon the trial the defendant called as a witness one J. P. Tupper, who testified that in 1885, at Bandon, in Coos County, the defendant, in his presence, gave Judge Mosier, who was then on his way to Douglas County, $140, with directions to deliver it to the deceased. An objection to this testimony on the ground of incompetency was overruled, and the evidence admitted. It seems to us clear that the objection was well taken. There was no showing that Mosier had any authority to collect money for the deceased, or to represent him in matters of that kind, and so its delivery to him with directions to pay to the deceased, without further proof, is no evidence of such payment. It may be suggested that the error was harmless, since it does not appear that the money alleged to have been so sent by Mosier is any part of the amount for which defendant is now claiming credit on the note in suit. The testimony was presumably offered for the purpose of showing that the defendant paid to the deceased the amount of money mentioned, and, the court having ruled that it was competent, it is doubtful whether, if the case turned on this point alone, the judgment could be affirmed on the theory that its admission was harmless. During the progress of the trial the plaintiff was called as a witness in his own behalf, and testified that he was the son of the deceased, and was appointed administrator of his estate in March, 1895 ; that he was present at the time the note set out in the complaint was executed by the defendant, and that it was given for the amount then due on the *340 old note, after deducting a credit of $530 for money forwarded to the deceased through Walter Sutton, and $170 advanced by the defendant to J. H. Williams.

2. Upon cross-examination he was asked, over the objection and exception of the plaintiff, if he did not, at a certain time and place, have a conversation with Mrs. Day, the defendant’s mother, no one else being present, in which he said, in substance, that his brother, J. H. Williams, “had already got all that Sol (referring to defendant) owed his father, or almost all that Sol owed him and answered that he did not have such a conversation with, or make such a statement to, Mrs. Day. The defendant thereafter called Mrs. Day as a witness, and she testified that the plaintiff came to her home some time in 1891, and, while in conversation with her concerning his brother J. H. Williams, said that they had helped him about all they intended to, and that all the defendant owed his father had been paid to him, or words to that effect. It is a well-settled rule that the declarations of an executor or administrator before his appointment are not admissible against him in his representative capacity (1 Greenleaf, Ev. [15 ed.] § 179; Niskern v. Haydock, 48 N. Y. Supp. 895 ; Church v. Howard, 79 N. Y. 415 ); and hence Mrs. Day’s testimony was clearly incompetent as proof of declarations by the plaintiff against his interest.

3. It is argued, however, that it was competent for the purpose of impeaching the plaintiff by showing that he had made statements out of court inconsistent with his testimony ; but, before this position can be sustained, it must appear that the cross-examination of the plaintiff was proper. The cross-examination of a witness must be confined" to matters stated in the direct examination, *341 or properly connected therewith, and material to the matter in controversy : Ah Doon v. Smith, 25 Or. 89 ( 34 Pac. 1093 ); Sayres v. Allen, 25 Or. 211 ( 35 Pac. 254 ). The cross-examination of the plaintiff in reference to his alleged conversation with Mrs. Day was in violation of this rule, and did not lay a foundation'for the subsequent introduction of impeaching testimony. Moreover, it is well settled that a witness can not be cross-examined as to any fact that is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence, if he should deny it, in order thereby to discredit his testimony : Goodall v. State, 1 Or. 334 ( 80 Am. Dec. 396 ); 1 Greenleaf, Ev. (15 ed.) § 449. And, as we have already seen, any declarations the plaintiff may have made concerning the subject-matter of this litigation prior to his appointment as administrator were immaterial and irrelevant, and his cross-examination in reference thereto could not lay a foundation for the admission of proof of his declarations as impeaching testimony. It is manifest, therefore, that both the cross-examination of the plaintiff and the admission of the testimony of Mrs. Day were erroneous, and, as they bore directly on the vital questions in the case, the court can not say that they did not affect the result of the trial.

4. It is further insisted that the court was in error in charging the jury that it is a presumption of law that a letter duly'directed and mailed was received in the regular course of the mail. It would seem from the authorities, generally, that depositing a letter in a post office, properly addressed and stamped, is prima facie proof that it was received by the person to whom it was addressed in due course of mail, but that this is an inference of fact, and not a presumption of law: 13 Am. & Eng. Ency. Law ( — ed.), 260 ; Home Ins. Co. v. Marple, 1 Ind. App. *342 411 ( 27 N. E. 633 ); Austin v. Holland, 69 N. Y. 571 ( 25 Am. Rep. 246 ); Sullivan v. Kuykendall, 82 Ky. 483 ( 56 Am. Rep. 901 ). But our statute (Hill’s Ann. Laws, § 776, subd. 24,) provides “that aletter duly directed and mailed was received in the regular course of the mail” is a presumption of law. There was therefore no error in the court so charging the jury. For the reasons given the judgment must be reversed, and the cause remanded for a new trial. Reversed.