Hepler v. Mount Carmel Savings Bank , 97 Pa. 420 ( 1881 )

Mr. Justice Gordon

delivered the opinion of the court, March 28th 1881.

The promissory note, the subject of this suit, was drawn by Nathan Bolich to the order of Daniel M. Hepler, in the sum of $2500, payable sixty days after date, at the Mt. Carmel Savings Bank. By Hepler it was endorsed for the accommodation of Bolich, and by him, Bolich, transferred to the bank. When this note was presented on the trial of this case, it was discovered that the date had been altered by striking out the word “ Apr.,” and substituting the word “May” in its place. On objection by the defendant, Hepler, the court below properly refused to admit the note in evidence until the alteration was explained. The bank then offered proof to show that when Bolich presented the note for discount it was altogether without date, and that Bolich afterwards had himself filled in the date “Apr. 4,” and immediately, on his attention being called to the mistake, had stricken out the word “Apr.” and inserted “May.” We think the admission of this evidence and its submission to the jury was proper. Whilst it is admitted that any material alteration in a note, after its endorsement, will invalidate it as to the endorser, yet, where it is endorsed without date, the presumption necessarily is that the drawer or endorsee is authorized to fill in the date. This is undoubtedly the rule where the sum is left blank : Worral v. Gheen, 3 Wright 496. And no good reason can be urged why the same rule should not apply to the date. This note was drawn for the renewal of a former one, and as the parties may not have known the exact time when the former fell due, the reason for its being endorsed without date would, in that event, bo obvious. We think, then, that, under the circumstances, this testimony was rightly admitted; hence the first exception of the plaintiff in error is dismissed.

The second exception relates to the admission of the evidence of H. D. Rothermel, a deceased witness, given at a previous trial of this same case, before a board of arbitrators. To prove what that evidence had been, a Mr. Montelius was called, who, on preliminary examination, said he could not give the words that had been used by the witness, but could give the substance of his evidence on some points, and those points were as to the date and condition of the note when presented for discount. On cross-examination, he said he could not recall to recollection any of the cross-examination of Rothermel, except that, as to the date of the note and circumstances attending it, he did not contradict himself. Under such a want of recollection of what the dead witness had sworn on cross-examination, this -testimony would not be , admissible, for there ought to have been such a recollection of the cross-examination, that the witness could give at least the substance of it, otherwise, as was said in Wolf v. Wyeth, 11 S. & R. 156, “to give what he swore on his examination in chief and omit his cross-examination would be to deprive the opposite party of his cross-examination.”

Such testimony would be altogether one-sided, and for that reason inadmissible. Montelius, however, upon further interrogation, says “ the evidence was the same on the cross-examination as it was on the examination in chief, relating to the date of the note and the attending circumstances.” From this we must understand that his recollection of the cross-examination was substantially the same as that of the examination in chief; that is, he had the same general recollection of the one as of the other, but no special, verbal recollection of either. But we are inclined to think that, under our own authorities, this general, or, as it is sometimes called, substantial, recollection of what the deceased witness said, was sufficient to warrant its reception.

It is true, the contrary is held by English authorities, and these authorities have been followed by Chief Justice Siiaw in Warren v. Nichols, 6 Met. 261; but, on the other hand, Mr. Greenleaf favors the more liberal rule as adopted in Pennsylvania. And we, whatever our private opinions might be, must be governed by the cases of Cornell v. Green, 10 S. & R. 14, and Wolf v. Wyeth, supra. Furthermore, by attention to the language of Chief Justice Gibsojt, in the case of Cornell v. Green, we may readily formulate the rule governing cases of this kind. “I take it,” he says, “ that wherever the facts from which a witness received an impression are too evanescent in their nature to be recollected, or are too complicated to be separately and distinctly narrated, his impressions from these facts become evidence; and this on the ground that it is the best evidence of which the nature of the case is susceptible. * * * I cannot, therefore, see why the same necessity which opens the way for secondary evidence of the very words of a deceased witness, should not also open the way for the substance of his testimony when his very words cannot be recollected; or discover the policy of a rule which would shut out the little light that is left, merely because it may not be sufficient to remove everything like obscurity.” From this .1 take the rule to be, where the witness on the stand cannot recollect the very words of the deceased witness, he may state in his own language the facts as detailed by that witness, as they were impressed on his mind at ■the time; and this applies as well to the cross-examination as to the examination in chief. All that is required is that the recollection of the witness be reasonably clear as to the fact testified to, and how, if at all, such testimony was affected by the cross-examination. As a rule, this is all that can be required of ordinary witnesses, and the adoption of a greater degree of strictness would result in the total exclusion of such evidence, for the exception is rare where a conscientious witness will undertake to do more than this. Judging, by this rule, we think the evidence complained of in this case was well admitted.

The judgment is affirmed.