Rolfe v. Rolfe

By the Court.

Warner, J.

delivering the opinion.

The first objection to the decision of the Court below, is the admission of the latter part of the testimony of Jackson Fields, a witness introduced by defendant, to prove the declarations of plaintiff, who, on his cross-examination stated, that “ if the defendant would pay him what he owed him, he could carry on his business without borrowing money.” This was a part of the same conversation, as that to which the witness testified on his direct examination, and we think it was properly admitted in evidence, on that ground.

With regard to the objection, that the defendant was not competent to prove by his own oath, that the entries made in his book of accounts were in the handwriting of the plaintiff, who was the defendant’s clerk at the time the entries were made, we find no error in the ruling of the Court upon that point; the books of the defendant, however, were made competent testimony, by the subsequent examination of Alexander Rolfe, who proved that the items objected to, wereinthe handwriting of the plaintiff, and that plaintiff had admitted that the account was correct.

[1.] The next objection to the admissibility of evidence upon the trial is, as to the remark made by the witness, Alexander Rolfe, when the receipt was given. The witness testifies, that he “ remarked in the hearing of both parties, to plaintiff, that he was a fool for giving such a receipt.” The remark was made in an audible voice, not ten feet from the parties, and defendant might have heard it, if he paid attention. The maxim is, in regard to admissions inferred from acquiescence in the verbal statements of others, qui tacet consentiré videtur, and is to be applied with careful discrimination. Nothing, it is said, can be more dangerous than this kind of evidence. It should always be received with caution, and never ought to be received at all, unless the evidence is of direct declarations of that land which naturally calls for contradiction; some assertion made' to the party with respect to his right, which, by his silence, he acquiesces in. 1 Greenleaf's Ev. §§199, 197. Here, the remark was not made to the party sought to be affected by it, but to his adversary, and in regard to what the plaintiff had done, not what the defendant had done; besides, it is not by any means certain, that the defendant heard the remark, and if he did, it was not such as would seem to have required from him any reply or consideration — therefore, we are of the opinion, that so much of the testimony of the-witness as relates to his declaration to the plaintiff, “ that he was a fool for giving such a receipt,” was improperly admitted as against the defendant, in view of the facts of this case.

[2.] The main ground of error insisted on by the plaintiff is, the refusal of the Court below to admit in evidence the account book of the defendant, on the trial of the case, under the circumstances stated in the record; and also, the refusal of the Court to grant a new trial on account of such refusal, upon the showing made for that purpose. We are of the opinion the defendant’s book of accounts ought to have been admitted in evidence at the trial, in furtherance of justice, inasmuch as the same was material for his defence, the items therein duly proved, and by a clear mistake, was omitted to have been read to the Jury at the proper time. Browning vs. Huff, 2 Bailey’s Rep. 178. As the facts are more fully stated in the application for a new trial, we will consider the question, as made on that application. LeviB. Smith, Esq. who was counsel for the defendant, swears in his affidavit, that “ after the amount against said Lucius Rolfe, in the book of defendant, was proved by Alexander Rolfe, deponent fully intended to offer said book in evidence to the Jury, and believed he had done so, and that plaintiff’s counsel had waived the reading of the same, as is usually the practice in the Court, and the failure to do so (if there was such failure) was a mistake and oversight of deponent, and that he confidently believed the same had been offered, and the reading waived, until advised thereof by the Court, in the opening argument of said cause before the Jury, in behalf of said defendant.”

Another affidavit, made by Barnard Hill, Esq. associate counsel in the cause, was filed,'which is to the same purpose as the foregoing, and equally pointed as to the misapprehension and mistake of the parties. When, in the progress of a trial, the cause suffers injustice from the honest mistake of the party or his counsel, relief will be extended by granting a new trial. Graham on New Trials, 180. D'Agrilan vs. Tobin, 4 English Com. Law R. 363. Wilson vs. Brandon & Shannon, 8 Geo. R. 136.

[3.] But the Court will not relieve the party from the consequences of mere ignorance, inadvertence, or neglect, by granting a new trial. Graham on New Trials, 187. We are bound to consider, that the omission to introduce the defendant’s book of accounts in evidence on the trial, was an honest mistake of the counsel, inasmuch as they have so stated in their respective affidavits ; and the facts connected with the trial, as appear from the record, corroborate that statement. Let the judgment of the Court below be reversed, and a new trial granted.