Kavanaugh v. Morgan

The fact that the court treats as an essential part of appellants' case the declaration contained in Mr. Kavanaugh's letters to prospective bidders at the approaching sale constrains me to record my dissent, which I would not otherwise do upon any difference of opinion on the questions of fact, for I am convinced that the court is in error in holding that such declarations are competent as evidence in the case. They are self-serving — nothing more nor less — and inadmissible. The decision of the majority is in direct conflict with numerous decisions of this court. Hamburg Bank v. George, 92 Ark. 472, 123 S.W. 654; Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482,173 S.W. 179; Carter v. Younger, 123 Ark. 270,185 S.W. 435; Donaghey v. Williams, 123 Ark. 411, 185 S.W. 778; Raymond v. Raymond, 134 Ark. 484, 204 S.W. 311; Davison v. Harris, 165 Ark. 518, 265 S.W. 67. The citation of 3 Wigmore on Evidence, p. 822, in support of the opinion of the majority, is not apt. The author merely lays down the rule that self-serving utterances or declarations are only competent for the purpose of establishing the state of mind, "knowledge, belief, rational emotion, or the like," of the speaker, and not as substantive proof of the facts stated in the utterance. The chancery court found that the proof was sufficient *Page 21 to establish the trust, and, in my opinion, the state of the proof in the record is such that I do not think those findings ought to be disturbed.