Page v. Hazelton , 74 N.H. 252 ( 1907 )

The entries on the testator's cash book were not admissible as items of book charge in favor of his executor, because they were money items each of which exceeded $6.67. Remick v. Rumery, 69 N.H. 601; Bailey v. Harvey,60 N.H. 152; Rich v. Eldridge, 42 N.H. 153, 158; Bassett v. Spofford,11 N.H. 167. If the defendant could have made all the contents of the books evidence by attaching such a condition to the plaintiff's examination of them (Wentworth v. McDuffie, 48 N.H. 402; Huckins v. Insurance Co.,31 N.H. 238), no such condition was imposed. The items offered, therefore, were not admissible as direct evidence in behalf of the defendant. But they were not so admitted. They were admitted merely as bearing upon the probability of the inference sought to be drawn by the plaintiff from the items which he put in from the same book. It is to be presumed the items of cash claimed in the plaintiff's specification and found on the deceased's cash book represent money delivered by the plaintiff to the defendant's testator, Smith. If from these items it could be inferred the money delivered was a loan, other entries in the same account rebutting that inference and tending to show the transaction was a payment on account were competent. The entries made by Smith and offered by the plaintiff admissible as the statement of a party. Proof by one party of a statement made by the other entitles the latter to give in evidence any part of the statement which has not been already offered, which tends to qualify, limit, or explain that portion of the statement already in proof. Wentworth v. McDuffie, 48 N.H. 402; Whitman v. Morey, 63 N.H. 448; State v. Saidell, 70 N.H. 174. This principle applies to a statement made by a party in his books of account. 3 Wig. Ev., s. 2116; Dewey v. Hotchkiss,30 N. Y. 497, 502; Low v. Payne, 4 N.Y. 247.

The entries put in by the plaintiff are not described. The precise relation between them and the entries offered by the defendant does not appear. The case, therefore, affords no opportunity for a discussion of the limitations, if any, upon the right of a party to the use of his books of account after they have been adopted as proof by his opponent. It does not appear that the books were used as evidence for any purpose except to rebut the inference sought to be drawn by the plaintiff from the items selected by him; and as the case is drawn, it must be assumed that the items relied on by the defendant legitimately tended to rebut such inference. But as the only use claimed for the books by the defendant was to rebut the inference sought to be drawn by the plaintiff, it is immaterial whether the items relied on by the defendant had such tendency, or whether they were competent for that purpose or not. "The delivery of money without other evidence of the contract between the parties raises no presumption of law that it was intended to be a loan, rather than the payment of a debt, or gift." Coburn v. Storer, 67 N.H. 86, 87; Fall v. Haines, 65 N.H. 118. As the inference sought to be drawn from the admission of the receipt of money, contained in the books of the deceased, could not properly be drawn, it is immaterial whether the evidence admitted solely to rebut that inference was competent or not. Since the only effect the evidence could have had was to defeat an inference which could not have been drawn if the evidence had been excluded, the plaintiff could not have been harmed by its admission.

Subject to exception, the defendant was permitted to prove that at the time when the plaintiff claimed the deceased, then living and solvent, was indebted to him in a large sum, the plaintiff told witness that he was unable to pay a note on which the plaintiff was principal and the witness surety. "Evidence is any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact." Cook v. New Durham, 64 N.H. 419, 420; Cole v. Boardman, 63 N.H. 580, 581; Cohn v. Saidel, 71 N.H. 558, 568; 1 Wig. Ev. 38. Evidence having any tendency, however slight, to prove a particular fact is competent to be submitted to the jury to show that fact. Curtis v. Car Works, 73 N.H. 516; Eaton v. Welton, 32 N.H. 352. The evidence objected to tended to. show that the plaintiff was in need of money at a time when, according to his present claim, the deceased, Smith, had in his possession a considerable sum in cash belonging to him. The plaintiff's failure, in this situation, to demand or to attempt to collect his debt of a responsible debtor for a considerable time, and until after the death of his alleged debtor, is a circumstance which has some logical tendency to discredit his present claim. Failure to make claim when occasion therefore exists has some tendency to prove the invalidity or non-existence of the claim. Stone v. Tupper, 58 Vt. 409, 412; Strong v. Slicer, 35 Vt. 40, 43. Such failure to act may constitute "an admission by conduct" adverse to the present claim. 1 Wig. Ev., ss. 267 (b), 284. As the evidence was relevant, its admission was not error of law, even if it might properly have been excluded as too remote. Pritchard v. Austin, 69 N.H. 367, 369.

The testimony of the bank cashier to the payment of money by Smith upon an obligation of Smith and Page was competent. Whether the payment was available in defence would depend upon other evidence. The bond for the deed of the land conveyed by deed by Smith and Page was a part of the transaction opened by the plaintiff by the introduction of the deed and his claim to the consideration received by Smith. It was a statement under the hand and seal of the plaintiff. No objection to its competency appears, nor is it perceived in what way its admission could have prejudiced the plaintiff. If payment was made according to the terms of the bond, Smith received the money at an earlier date than the plaintiff has charged him with it. At the most, the bond, if material, was not prejudicial.

Exceptions overruled.

YOUNG, J., not having been present at the argument, took no part in the decision: the others concurred.