Barnum v. Barnum

Daggett, J.

The plaintiff asks a new trial, on the ground of several interlocutory opinions given by the judge, at the circuit, and on the ground of error in his charge.

The defence consisted of two parts ; first, false asseverations made by the plaintiff to induce the defendant to buy the ticket in question ; and if the defendant had failed to establish the fraud, then that the testimony proved that there was no consideration for the promise.

1. The testimony of Samuel Barnum of a conversation between him and the plaintiff, was objected to. This was offered by the defendant, for the double purpose of proving the contract of sale and also the fraud of the plaintiff. That part of it, which related to his confession that he had offered it for 200 dollars, does not seem, in the view of the plaintiff, to be objectionable ; but he insists, that the part which consists of the reply of the plaintiff to the remark of *he witness “ that he should not think he would sell to the defendant for 200 dollarsthat “ he had offered it and should not take it back,” — was not admissible. This objection: is extremely refined, and if it were to prevail, it would tend: much to embarrass the trial. The settled rule of law is, that when a witness attempts to relate a conversation, he ought to; relate the whole ; nor is it confined to what the party may have said in chief, but it extends equally to answers which her may have made to questions; for such answers may explain or destroy the substance of the conversation. Moreover, the. question was, whether any fraud was practised, by the plain* tiff. It would be unsafe to say, that the jury might not consider this reply of the plaintiff as containing some evidence of a fraudulent design.

2. Zcichariah Porter was called, by the plaintiff,’to identify the ticket, and to show, that it was the ticket sold by the plaintiff. He said, that he put down the combination numbers, with a pencil, on a piece of paper, not now in his'possessio¡i: and he could not say, that this was the same ticket; but he testified on a former trial between the same parties respecting that: ticket, and then had the minute with him, and knew that the ticket shown and in controversy on that trial, was the same sold by the plaintiff to the defendant. The defendant then offered R. Booth, Esquire, to testify, and he did testify, that; this ticket was the same offered in evidence on the former trial. This testimony of Z. Porter was objected to, and- admitted. The witness then went to his house, examined the minute made by a pencil, and came again on the stand, and test fied, that he had compared it with the ticket, and had no doubt that it was the same. This proof was rendered admissible, by the testimony of Mr. Booth ; and it was confirmed, by; his subsequent affirmations. It would be a strange position,; that a declaration of a witness shall not be received, because he cannot be positive as to the identity, when that doubt can be removed by a competent witness. Id certum est quod certum reddi potest, applies with full force.

3. Daniel Burgess’s deposition was offered to prove, that the ticket in question had drawn a blank. The deponent swore, that he was a manager in the Groton Monument lottery ; that he attended the drawing of the lottery ; and that the ticket with these combination numbers drew a blank. This deposition was objected to, on the ground that the deponent ought not to be admitted to swear that he was appointed a manager, or to prove the drawing of the numbers, or that this ticket drew a blank ; especially, as the conditions and terms of this, /Scheme had not been proved. This deposition was admitted and was read to the jury, notwithstanding it was objected to, by the plaintiff I see nothing erroneous in this opinion of the judge. The deponent was not called upon to swear respecting a record, or to the contents of any writing; nor was it at all materia! whether he was a manager duly appointed. All the material facts about which he testified, were as to the drawing of this lottery ; and that the ticket with this combination drew a blank. His deposition is full to the purpose that he attended the drawing ; and whether it drew a blank he certain-Jy knew', as he gives all the numbers drawn ; and it appears, that no one of the numbers thus drawn, was on this ticket. Our courts have gone much further than this in the trial ofin-dictments for counterfeiting the bank notes of the banks in this and the other states. The testimony of persons conversant with such paper has been received, and that too against the objection, that such testimony was not the best which the nature of the case would admit of; for that by the books of the banks it could be made certain whether those notes had ever been issued by them. No rule of law requires all the evidence, or the strongest evidence of the matter in dispute ; but it forbids that evidence, which, from the nature of the case, supposes better evidence which the party might obtain. A record or bond is better evidence of their contents than the testimony of any witness. Such testimony, therefore, shall not be admitted while the record or bond is kept back. It would awaken just suspicion of fraud. I perceive nothing in this deposition to create such a suspicion. Thus much in relation to the objections to the testimony.

4. There is a question, however, in this case, which deserves much consideration. The court was requested to instruct the jury, that as this note was made payable to the plaintiff only, and*was not therefore negotiable, unless they found the note was obtained by fraud, their verdict ought to be for the plaintiff ; for that the want of consideration was not at law a de~ fence. The court refused so to instruct the jury.

1 This position is founded on the idea, that this note is a sjpe-Icialty; and this being assumed, the plaintiff might have insisted, that even fraud would be no defence ; for the common law doctrine is, that neither fraud nor want of consideration ⅛ a defence at law to a specialty : The consideration is locked fe: . . . 1 , . J _ , . , up and cannot be enquired into, brand in the execution in..y be shown ; because, if proved, it is not the act and deed of the party. In support of the doctrine that a promissory note, *, not negotiable, is a specialty, and is in all cases to be tre; n ¡1 as such, the plaintiff relies on the uniform practice of our Vx courts, and on the authority of our elementary treatises. Tims Svñft, in his System, vol. I. page 392. says : “ In this state, the ii; courts have adjudged, that promissory notes, though unsealed, share specialties.” The same doctrine is repeated and enforced ⅜ in his Digest, vol. 1. pp. 189.429. There is additional tiu-|r thority given to this opinion, by the practice which formerly ]. prevailed in declaring on promissory notes as specialties, ! , - inga proferí, and pleading the general issue of Non esl / . turn. Our statute of limitations also bars a recovery on all si in- '*• pie contracts, after the lapse of six years; but the limitation •' seventeen years respecting notes, the same as bonds.

In like manner, our courts have decided, - that a rece without a seal, might be pleaded as a release, giving to it thep. force of a sealed instrument. Carter v. Bellamy, Kirb. 291. Herd v. Bissel, 1 Root 260. Palmer v. Corbin, 1 Root 271. Anderson v. Hanshaw, 2 Day 272. This doctrine was somewhat shaken, by the decision of this Court, in the case oil Bartsch v. Atwater & al. 1 Conn. Rep. 409.; but the lexion s-i rather governed in that case, the receipt having been made New-York.

The principle involved in this cause, has been, several brought into view, in this Court ; but I am not aware, th<; > has been directly settled. A case was decided, by the Intel Judge Chapjnan, on the circuit, that an instrument, purport to convey land, was not a valid deed without a seal. This <ie-| ¡ cisión probably produced the act of our legislature of 1824, which declared, that all conveyances of land, and ;.ii|bonds theretofore made, should be good, though not sealed.f; But by the terms of this act, it was not to extend to any jnitf then pending; and it left the point still unsettled as to the cessity of a seal, in future.

In Montville v. Havghton & al. 7 Conn. Rep 543. and in Seymour v. Harvey, 8 Conn. Rep. 63. this Court recognbwd,: the doctrine, that a seal was essential to the validity of a bond* In the cases of Edgerton & al. v. Edgerton, 8 Conn. Rep. and Chaplin v. Canada, 8 Conn. Rep. 286. this question was •¡made, by counsel; but the court did not deem it necessary to ¾ ¡dispose of it definitively.

,¾1 The principle established by this Court, in. Cook v..Bradley, ¶7 Conn. Rep. 57. bears strongly on the point now in judg-ilment. The first ground then taken by the Court, was, that •lithe case of Rami v. Hughes, 7 Term, Rep. 350. n. furnished ffthe true rule on the subject of contracts, viz. “ that all con- ■ ¡ tracts are distinguished into agreements by specialty and agreements by parol.”

it being a principle of the common law, that to constitute a specialty, there must be a seal, it follows, that this note is not a specialty, but stands on the footing of a parol contract; and therefore, a want of consideration, or fraud in the consideration, may be shown to avoid it. Indeed, it would be strange if it were otherwise, when the mode of pleading adopted for the last twenty years, has been non assumpsit.

I am aware, that in coming to this result, the opinion and practice of the profession, may be counteracted ; but it is so far from being a departure from the plain and established principle of the common law, that it is in entire accordance with it.

It is now only twenty years since promissory notes were first made negotiable. Formerly, when a fraud had been prac-tised, or a mistake had intervened, in making a note or receipt, the party was compelled to seek redress in a court of chance-rv. I can see no good reason why such a defence may not be safely made in a court of law.

Till the case of Read v. Brookman, 1 Term Rep. 151.it was the practice to seek redress upon a lost deed in a court qf chancery. It was then decided, that by alleging the loss, in a declaration at law, and by proving it, evidence of the contents might be received, and a recovery had. Other instances might be cited of a departure from precedents, to facilitate the administration of justice; but I forbear.

The motion for a new trial must be denied, and the rule discharged.

The other Judges were of the same opinion, except Bis» sbMi, J., who gave no opinion.

New trial, not to be granted.