Rideout v. Newton

Gilchrist, J.

The principle may be considered as having been settled in this State by the cases of Hamblett v. Hamblett, 6 N. H. Rep. 333 , and Sanborn v. Neilson, 4 N. H. Rep. 508 , that a distinct admission of a fact, made by a party during an attempt at compromise, may be given in evidence against the party making it, though an offer made for the purpose of effecting a settlement cannot. The reason is, that such admissions are in no way necessary to a treaty for a compromise, which is a mere attempt to buy a peace, and are supposed to be made, like other admissions, and for some one of the various causes which induce them. But the law protects a party seeking to purchase his peace, by denying to his adversary the benefit of any inferences that might be derived from an attempt to do so, that the cause of action which he seeks to compromise has some foundation in truth.

In this case, the defendant, upon being advised to make an offer, provided his signature to the note was genuine, but not otherwise, proceeds to make the offer. It is said that this offer may be shown, because it is highly probable, from the advice he received, that he would not have made it unless the signature was so. But it has been shown that such a reason would extend to the admission of any other offer of compromise, because such offers are more apt to be made in cases in wffich the party making *74 them is conscious that the cause of his adversary is well founded, than in the opposite cases. The fact that he acted upon advice which he had sought may add a very little to the force of such an inference as is contended for; but too little altogether to make the case an exception to the highly salutary, well defined and established rule. Nor is it apparent that acceptance of the offer by the plaintiff’ relieves the case from the operation of the rule. It was retracted by the defendant, and the treaty never ripened into an accord and satisfaction that could have been set up by either side. It never proceeded so far as to assume a different character than that of a mere negotiation, which was broken off before it could be brought to a conclusion.

"We are therefore of opinion that the evidence of the offer, although accompanied with the evidence of the previous consultation, and of the subsequent acceptance and retraction, was subject to the same objections that exist in relation to offers of this sort in general, and was improperly admitted.

There is no rule of law that requires that a witness, called to prove the hand-writing of a party, should have seen the party write a large number of times. Hand-writing, like the countenance, form, gait, and gesture of a party, is recognized by some more readily than by other witnesses, and is in some persons marked by more decisive and obvious peculiarities than in others. All that is requisite is, to ascertain whether the witness has seen hand-writing which, by an infallible test, he knows to be that of the party; and then he must upon his oath declare if the writing exhibited appears to him to be that of the same party. . The weight to be attached to such testimony must depend upon the ordinary tests of knowledge, the capacity of the witness, and his disposition to tell the truth, and the means that have been afforded him, whether from the intrinsic nature of the subject itself, or the familiarity of the witness with it, to acquire the information he assumes to have. The *75 witness to the genuineness of the defendant’s signature to the note was therefore properly admitted.

Elbridge Gould had a mortgage of the property attached, and which, being subsequent, was of course subject to the attachment. He had, therefore, an obvious motive to defeat the action, because the property on which ho relied to secure the condition of his mortgage, would, by that event, be disineumbered of the prior claim. He was therefore properly excluded.

The verdict must be set aside on account of the admission of evidence of the offer to compromise.

New trial granted.