Goltra v. Penland , 45 Or. 254 ( 1904 )

Mr. Justice Bean,

after stating the facts in the above terms, delivered the opinion of the court.

1. Phil Cohn, a warehouseman, testified that in the years 1899 and 1900 one Lassen delivered wool at his warehouse for the account of Penland, which Penland afterwards said belonged to Fields. The witness was thereupon asked to relate any conversation he had with Lassen at the time the wool was delivered in 1900 about its coming from Fields’ sheep, counsel stating that he expected to prove by the witness that Lassen said it was Fields’ share of the wool clipped from the sheep belonging to him, which Penland was running on the shares. An objection to the evidence was sustained, and, we think, properly. There was no testimony that Lassen was the agent of Penland for .any purpose, unless it is to be inferred from the fact that he delivered the wool at the warehouse, and that would not be sufficient to make his declarations as to the title or ownership of the wool competent evidence against Penland: Zorn v. Livesley, 44 Or. 501 (75 Pac. 1057). Where .the act of an agent will bind his principal, his declarations in respect to the subject-matter, if made at the time and forming a part of the transaction, are competent against the principal; but, if the declarations are concerning a matter not within the scope of the agent’s authority, the principal is not affected by them in any way, even though they may be made at a time when the agent is lawfully transacting some business for him: North Pac. Lum. Co. v. Willamette Mill Co. 29 Or. 219 (44 Pac. 286); First Nat. Bank v. Linn County Bank, 30 Or. 296 (47 Pac. 614); Wicktorwitz v. Farmers’ Ins. Co. 31 Or. 569 (51 Pac. 75); Van Vechten v. Smith, 59 Iowa, 173 (13 N. W. 96); 1 Greenleaf, Evidence (14 ed.) § 114. Lassen, if he was an agent of Penland at all, had no authority to deal with the wool in- any way except to deliver it at the warer house, and any statements or declarations he may have made as to the title or ownership were entirely outside the scope of his authority, and did not explain or characterize any act he was authorized to perform by virtue of his employment.

2. G. W. Phelps, one of the attorneys for the defendant executrix, was called by the plaintiff for the purpose of proving due presentation of the claim sued upon. On his examination in chief, he testified that a certain identified claim was presented to him by Fields about the time it was made out, but no questions were asked him concerning any conversations he had with Fields at the time, nor did he testify on that subject. On cross-examination, however, he was allowed to testify that at the time the claim was presented he told Fields that Penland said he did not have any sheep belonging to him, and also: “ I told Mr. Fields, among other things, that Mr. Penland, about the time that this Penland Livestock & Land Company, a corporation [was formed] — that, when the question came up as to turning over all the property to this new corporation, I asked him whether or not he had any sheep belonging to Mr. Fields, and Penland at that time said ‘No,’ and made some such remark as that ‘The old fool is crazy. I don’t owe him a cent.’ ” This was not proper cross-examination, and, the evidence itself being incompetent and obviously injurious to the plaintiff, the motion to strike it out should have been sustained. The right to cross-examine a witness is a valuable one, and should not be unnecessarily restricted, yet it must be limited to matter stated by the witness on his direct examination, or be connected therewith. A witness cannot upon cross-examination be questioned with regard to that which does not tend to impeach, rebut, explain, modify, or in some way qualify anything he has testified to on his examination in chief. He can only be examined on other matters by the examining party making him his own witness. The statute provides: “ The adverse party may cross-examine the witness as to any matter stated in his direct examination, or connected therewith”: B. & C. Comp. § 849. “Under this statute,” says this court in Ah Doon v. Smith, 25 Or. 89, 93 (34 Pac. 1093, 1094), “and the rule there, provided, a party has no right to cross-examine a witness except as to facts and circumstances stated on his direct examination, or connected therewith; but, within this limitation, great latitude should be allowed in conducting the examination. It should not be limited to the exact facts stated on the direct examination, but may extend to other matters which tend to limit, explain, or qualify them, or to rebut or modify any inference resulting therefrom, provided they are directly connected with the matter stated in the direct examination.” See, also, to the same effect, Sayres v. Allen, 25 Or. 211 (35 Pac. 254); Williams v. Culver, 39 Or. 341 (64 Pac. 763); Rapalje, Witnesses, § 246. Now, the only fact in this regard testified to by Phelps on his direct examination was that a certain verified claim of Fields against Penland’s estate had been presented to the executrix, through him, for allowance. The plaintiff did not ask for any conversation between the witness and Fields, nor did he offer to show any declaration of either of the parties. He simply sought to prove by the witness that the claim had in fact been presented. The evidence elicited on cross-examination as to what the witness told Fields at the time about Pen-land’s statements concerning the subject-matter of the claim was in no way connected with the proof of its presentation ; nor did it tend to limit, qualify, rebut, or explain in any manner the direct examination. It was therefore not proper cross-examination, and, as the evidence was otherwise incompetent, and obviously injurious to the plaintiff, it cannot be said that the error was harmless.

3. The court instructed the jury:

“In order to recover in an action of this sort against the executrix of the last will and testament of a deceased person, the plaintiff must allege and prove, among other things, that he presented his claim for the demand sued upon, and that the same was rejected, before action was commenced ; but the refusal of the executrix to act upon such claim, if you find from the evidence she did so refuse, after having the same in her possession for a reasonable time, and did neither approve or reject the same, -nor take action thereon, such action on her part would amount to a rejection of the claim.”

Objection was made to this instruction because “it failed to state what a reasonable time is, and is not a correct statement of the law applicable to the case.” The instruction, we think, is erroneous for two reasons: It made the question of the rejection of the claim depend upon the refusal of the executrix to act upon .it, when a mere failure or neglect to do so would have been sufficient; and it left the determination of what was' a reasonable time after the presentation of the claim in which to allow or reject it as a question of fact for the jury. The statute provides that no action shall be commenced against an executor or administrator until the claim of the plaintiff has been presented and disallowed (B. & 0. Comp. § 388), but if the administrator neither allows nor rejects the claim within a reasonable time after its presentation, it will be deemed disallowed, and the creditor may bring an action thereon: 2 Woerner, Administration, (2 ed.), § 390 ; 1 Abbott, Probate Law, § 473. The executor or administrator has a reasonable time after the presentation of a claim against the estate of his decedent in which to examine it and determine whether he will allow or reject it, but, if he fails to do either within such time, the claim will, in law, be disallowed, and it is immaterial whether his failure to act is due to an affirmative refusal or not. For this reason the language of the instruction was at least technically inaccurate, and may have misled the jury.

4. The more serious objection to the instruction, how-. ever, is that it left the question whether the defendant had a reasonable time after the presentation of the claim in which to allow or reject it as one of fact for the jury. The complaint alleges that the claim was presented to the executrix for allowance on the 18th of April, 1903, and the answer says that it was presented on or about the first of that month. The action was commenced September 28th following, so that it is admitted by the record that it was almost six months from the time of the presentation of the claim to the commencement of the action; and, as there was no reason offered by the defendant for her delay in not passing upon the claim, the question as to whether she had had a reasonable time in which to do so was for the court, and not for the jury. “Generally, what is a reasonable time,” says Mr. Justice Strahan, in Fleischner v. Kubli, 20 Or. 328 (25 Pac. 1086), “ when the facts are undisputed, is a question of law for the court.” The same rule is stated by Mr. Justice Wolverton in Howell v. Johnson, 38 Or. 571 (64 Pac. 659).

5. It is undisputed that the claim was presented to the executrix by the 1st of April, and was in her possession six months later, when the action was commenced. This was clearly a reasonable length of time in which to determine whether she would allow or reject it. The court should have so declared as a matter of law, and not left the question for the jury. In Willis v. Marks, 29 Or. 493 (45 Pac. 293), a claim against an estate was presented to the administrator on the 8th of January, a demand for its return made by the claimant on the 9th of the following April, and an action of replevin commenced about two months thereafter; and the court held that the administrator was entitled to hold the claim a reasonable length of time after its presentation for examination, to determine whether it should be allowed or rejected, but that a reasonable time had elapsed, and plaintiff could therefore maintain an action of replevin to recover possession thereof.

6. The deposition of Hugh Fields was taken prior to his death, and read on the trial. He testified, among other things, that the last of April or the first of May, 1901, he presented to Mr. Phelps, the attorney for the executrix, for allowance, a verified claim sued upon, and that he subsequently endeavored to get the executrix to pass upon it, but could not do so. The court instructed the jury that they “ must not find for the plaintiff upon any point, except there is competent or satisfactory testimony other than the deposition of the claimant, Hugh Fields, and this is true even though you should believe the testimony of Fields upon said point.” The questions as to whether the claim sued upon had been presented to the executrix and rejected by her, or had’been retained an unreasonable length of time, were submitted to the jury ; and, under this instruction, they were, in effect, told that they could not find in favor of the plaintiff upon such issues, except upon some evidence other than that of Fields, even though they should believe his testimony. This we conceive to be an erroneous constr.uction of section 1161 of the statute, which provides that, when a claim has been presented to an executor or administrator, he shall indorse thereon the words “ Examined and approved,” with the date thereof, and sign the same officially, .if he is satisfied that the claim is just; if not, he shall indorse thereon the words “Examined and rejected,” with the date thereof, and sign the same officially, and that “ no claim which shall have been rejected by the executor or administrator, as aforesaid, shall be allowed by any court, referee, or jury, except upon some competent or satisfactory evidence other than the testimony of the claimant.” The purpose of this statute is apparent. It is to protect the estates of deceased persons against false and fraudulent claims, and to guard against false testimony. The death of a contracting party often renders it difficult, if not impossible, for his representative to show the invalidity of a claim against his estate, or to defend against it; and therefore the statute has provided that, when the lips of one party are closed by death, the testimony of the survivor shall not be sufficient alone to establish a claim against the estate of the deceased. Before an action can be brought against an executor to establish a liability against the estate, however, it must be shown that the claim has been duly presented to him and disallowed, or that he has retained it an unreasonable length of time, and the statute referred to can have no application to a trial of this preliminary question. It is only on the trial of the merits of a rejected claim that it can apply. The issue as to whether the claim has been presented and rejected is not within the purpose of the statute, or the mischief intended to be remedied. It is an issue to be determined from the testimony of living witnesses, to be tried out as any other question of fact, and decided upon the preponderance of the evidence. When it comes to the trial of the merits, the statute applies. It must be first shown, however, that the claim has been presented to the executrix and rejected by her, and this can be done by any evidence satisfactory to the trier of fact. The statute says that no claim which has been rejected, etc., shall be allowed, except upon a certain character of proof, but it says nothing about the proof necessary to establish the preliminary issue of the presentation and rejection of the claim.

7. The meaning of the statute when it applies is not easy to determine. It provides that a claim which has been disallowed by an executor shall not be allowed by any court or jury, except upon some “competent or satisfactory” evidence other than the testimony of the claimant. Whether this means that the claim shall not be allowed unless the testimony of the claimant is corroborated by other pertinent and competent testimony, or whether his evidence shall be entirely disregarded and the claim disallowed unless there is other evidence in the case sufficient to satisfy the trier of fact of the justness of the claim, is the important question. The language of the statute is contradictory. It says the evidence shall be competent or satisfactory, and these terms are not, in law, synonymous. By “competent evidence” is meant that which the nature of the fact to be proved requires — such as the production of a writing when its contents are the subject of inquiry: 1 Greenleaf, Evidence, (14 ed.) § 2. Satisfactory evidence, on the other hand, is that evidence which ordinarily produces moral certainty or conviction in an unprejudiced mind (B. & C. Comp. § 688), or, as Mr. Greenleaf says, such as “ordinarily satisfies an unprejudiced mind beyond reasonable doubt”: 1 Greenleaf, Evidence, (14 ed.) § 2. Evidence may therefore be competent, and not satisfactory. And it may be satisfactory to the trier of fact, and not be' competent: — such as secondary evidence of the contents of a writing, without the writing itself being accounted for. The statute, therefore, cannot mean that evidence other than that of the claimant, either competent or satisfactory, will be sufficient to establish the claim. Competent evidence would be such merely as the nature of the case requires, and znight be very slight and insufficient, while satisfactory evidence would require proof to a moral certainty, if not beyond a reasonable doubt, and that is znore thazr the law requires in a civil case. The statute, therefore, znust be construed according to its spirit and purpose, and the evil sought to be reznedied, rather than the technical meanizig of the words used. Looking at it from' this standpoint, and keeping in full recognition its purpose, which is to avoid the injustice which might follow frozn the allowance of a claim against the estate of a deceased person on the testimony of the claimant alone, the reasonable interpretation seezns to be that the testimony of the claiznant is not sufficient, but there must be other material and pertinent testimony supporting or corroborating that given by him, sufficient to go to the jury and upon which it might find a verdict, so that the decision may rest upon some evidence other than that of the claimant. This is substantially the construction of the statute indicated in Quinn v. Gross, 24 Or. 147, 151 (33 Pac. 535), and Harding v. Grim, 25 Or. 506 (36 Pac. 634), although in neither of these cases was the direct question presented. It was evidently not intended by the legislature that the evidence of the claimant should be entirely ignored or disregarded. If such had been the purpose, it would have been so provided. In many of the states, when one of the contracting parties to a litigated obligation is dead, the other is not permitted to testify : 1 Wharton, Evidence, (2 ed.) § 466; 2 Woerner, Administration, (2 ed.) § 398; Bradner, Evidence, § 14. Our statute, however, does not go to that extent. The claimant in an action against an estate is a competent witness in his own behalf (B. & 0. Comp. § 722), but his testimony is not of itself sufficient to establish his claim. Section 1161 is practically an enactment of the English equity rule, which is that “ a pecuniary demand against the estate of a deceased person will not be considered and established by the oath of the person making such claim, unsupported by any other evidence”: Wharton, Evidence, (2 ed.) § 467.

8. The remaining assignments of error are based upon instructions given. It is unnecessary to set out the instructions in full, or to notice them in detail, for they are lengthy and would unnecessarily encumber this opinion, and many of the questions involved have already been disposed of. The only point remaining to be noticed is the instruction to the effect that plaintiff could not recover in this action unless Penland, at the time of the alleged settlement between himself and Fields in May, 1900, had in his possession sheep belonging to Fields, or unless certain sheep were then set aside and appropriated to the contract, so that they could be identified, and Pen-land thereafter converted them to his own use. In other words, that if Penland had, prior to the alleged settlement, sold and disposed of all the sheep previously leased to him by Fields, and converted the proceeds to his own use, the plaintiff could not recover, even if he had concealed that fact from Fields, and Fields had, in ignorance thereof, made the alleged settlement and agreement of leasing in May, 1900. ' The theory of the plaintiff’s case is that Fields was the owner of a band of sheep which Penland had been running and caring for-along with sheep of his own for a number of years prior to May, 1900 ; that Fields had not seen the sheep for some time, and did not know the number he owned ; that-about that time he and Penland had a mutual accounting and settlement as to the number of sheep in Penland’s possession belonging to Fields, and Penland agreed to lease them for another year on shares, at the expiration of which time he was to return the sheep to Fields, less a certain per cent for loss, with his share of the increase and wool; that, in violation of such agreement, and before the expiration of the lease, he sold and disposed of the sheep, and appropriated the proceeds to his own use. The action is for the conversion of the sheep alleged to have occurred before the expiration of the lease. It was necessary, therefore, for the plaintiff to prove that Penland had in his possession at the time of the settlement in May sheep belonging to Fields, and that he had converted them to his own use. The settlement and agreement, if made as alleged, would be conclusive as to the number of sheep ; but, if Penland had no sheep at the time belonging to Fields, the agreement would not transfer the ownership of other sheep to him, unless they were selected and identified in some way. It would probably estop Penland and his representatives, in an action for a breach of contract of leasing, or for a failure to return the sheep at the expiration of the time, to deny that he had the number of sheep agreed upon, but this is not an action of that character.

It follows that the judgment must be reversed and a new trial ordered. Reversed.