Williams v. Manning , 41 How. Pr. 454 ( 1870 )

Grover, J.

Having come to the conclusion, that there must be a new trial for the reason that the referee erroneously received in evidence the letters of Alexander Morrison, as proof of the facts therein stated against the defendant, I shall' not examine the other questions discussed by coúnsel, as they may be somewhat varied upon another trial, Alexander Morrison, although, a former partner of John Morrison, the defendant's intestate, against :which firm the plaintiff claimed the indebtedness sought to 'be recovered in the action, was not a party. The action was brought against the defendant as the representative of John Morrison, deceased, to recover the debt from his estate, upon the ground that Alexander Morrison, the surviving partner was wholly insolvent. It is true, that the referee has found in effect, that none of the letters received in evidence were written by Alexander, after the plaintiff knew of the dissolution of the partnership. But this does not affect the question under consideration. • That is not whether 'John Morrison and his representatives are bound by a contract made by A. Morrrison, on behalf of the firm, but whether the admissions of Alexander either oral or written, are competent evidence against John Morrison or his representatives in an action against him, or them, brought upon a claim against the firm. The elementary rule is, that the admissions of parties to the record, or of, those represented by such parties only, are admissible.

The declarations of those having an interest in the subject matter litigated are equally incompetent with those who' are disinterested. The party against whom such declarations are offered has the right to insist that the person making them,^ although interested, shall be introduced as a witness to prove the facts, and that he shall have the right of cross-examination, otherwise the most important rights might be lost without any chance of redress. The fact that Alexander was the former partner of John, and that his interest, if any, originated therefrom, does not affect the rule, or the reasons upon which it is founded. Alexander was a competent witness, and would have been prior to the statute obviating objections to his competency founded upon his interest. Under this state of facts, his declarations, either oral or written, were but mere hearsay, and incompetent. This precise objection was taken by the counsel for the appellant, and overruled by the referee. Under this ruling, a large number of letters were received, to some of which the objection was not renewed.

This was unnecessary after the referee had, by his ruling, settled the question that the letters of Alexander were competent evidence.. Portions of the letter, showing an employment of the plaintiff by the firm, were competent. Other portions, stating facts showing, or tending to show, the extent of the plaintiff’s services, the satisfaction of the firm therewith, or any other fact affecting the issue, except the making of contracts binding upon the firm were incompetent ; and when the letters were offered in evidence contain ing incompetent matter, to which the proper objection was taken, it was error to overrule it.

There are exceptions to the rule excluding the declarations of those not parties, and those represented by parties, but the present case does not come within any of them.

For such exceptions see Vrooman agt. King (36 N. Y., 477); Brown agt. Mailer, 12 N. Y., 118 ; Stark agt. Burrell (6 Hill., 405); Paige agt. Cagwin (7 Hill, 361). The incompetent evidence may not have affected the result, but it is impossible for the court to determine that it did not.

Upon this ground the judgment must be reversed, and a new trial ordered. While this court cannot entertain the question,whether the amount of the recovery was not excessive, I cannot abstain from the remark that gpon a re-trial I should expect that the amount of the debt placed by the firm in the hands of the plaintiff, for collection, the amount collected, and paid over thereon ; the fact that the firm resided in a distant part of the state, and of necessity must have relied upon the advice and information of the plaintiff, in determining the course to be pursued ; the very serious litigation in which they became involved, and the disastrous result thereof, would be thoroughly consistent, in determining the amount that the plaintiff was reasonably entitled to recover for his services as attorney and counsel, if entitléd to recover in this action. Therefore, I apprehend from the testimony in the case in connection with the amount of the recovery, that some of these considerations must have been overlooked by the learned referee in considering the case.

Judgment reversed, and new trial granted.