Gill v. Staylor

Pearce, J., delivered the opinion of the Court. This is an action of assumpsit by John Staylor against Roger T. Gill, administrator of Catherine Staylor, to recover for thirteen years of continuous service rendered her. Issues were joined upon pleas that neither defendant nor his decedent were ever indebted as alleged, nor ever promised as alleged ; that the action did not accrue within three years before suit brought ; and that the assets of the estate are not sufficient to pay all the decedent’s debts, regard being had to the alleged debt of the plaintiff. Mrs. Staylor’s husband was a butcher, and the plaintiff was his nephew, and learned his trade with him.

After his death in November, 1885, Mrs. Staylor continued the business which was carried on for her by the plaintiff and her brother, Albert W. Lutz. There was no dispute as to the rendering of any of the services alleged, the only questions being as to the compensation, and whether full payment had been made. The plaintiff was permitted to testify on his own offer without objection, and he swore that he worked for Mrs. Staylor uninterruptedly from July 5th, 1886, to October 14th, 1899, during all of which period, he received his board from her but no money whatever for his services, and it is a singular feature of the case that he was absolutely silent as to any agreement or understanding, express or implied, for any com ⁴⁶⁵ pensation for his services. He testified, however, that in the interval between his uncle’s death and his going to work for Mrs. Staylor that he rendered similar services to one Courtney, and received from him his board and five dollars per week ; and one Krout, who worked there with him, testified that Staylor showed him two letters from Mrs. Staylor asking him to return and work for her and promising him the same wages he received from Courtney, which Krout says were fair wages for the work.

Maggie Donovan, who lived with Mrs. Staylor from 1886 to 1890, testified that she heard Mrs. Staylor tell John he was to get $5.00 a week, and that she also told John in her presence, that Maggie and John, at her death, would get what belonged to her for working for her and attending to her. Mrs. Edwards and her sister, cousins of Mrs. Staylor’s husband, testified that they heard her say in 1898, that she had willed everything to John, but that they knew nothing about any wages he was-to receive. Mrs. Lafferty, who was - a neighbor of hers for many years, heard her say that at her death everything she had would go to John-and Maggie. John McKewen heard her say on several occasions, that when she died, the business and the house would be John’s, and that she was saving his money for him.

These, and several other witnesses who testified to plaintiff’s services and their reasonable value, without any knowledge of the terms on which he was employed, were produced by the plaintiff, and at the close of the plaintiff’s testimony, the defendant offered two prayers : One, that there was no legally sufficient evidence to establish a contract, implied or expressed, between the plaintiff and Mrs. Staylor, and one, that there was no-legally sufficient evidence to entitle the plaintiff to recover, both of which were rejected, and their rejection is the ground of the first exception. Neither in the brief nor in the oral argument was this exception alluded to, and we may, therefore, presume it was abandoned, but it is in any event obvious from the recital of the testimony we have given that there was no error in this ruling. The fourth exception was taken to the asking and answer ⁴⁶⁶ ing of a question permitted by the Court as to whether the Knights of Pythias, of which plaintiff was a member, was not virtually an insurance society. The relevancy of such testimony is not apparent, nor is the injurious consequence of its exclusion apparent, assuming it to be admissible upon any theory of the case, and we shall not pause therefore to consider it.

The second and third- exceptions were taken to the refusal to permit the defendant to read in evidence from a memorandum book, entries by Mrs. Staylor of payments made to the plaintiff on account of his wages, which offer was twice made and refused. These exceptions will be considered together. Lutz testified for the defendant that Mrs. Staylor was his sister, and that he was employed by her in her business from 1887 till her death in 1899; that she agreed to pay and did pay him five dollars a week without board; that the plaintiff was ■ to receive three dollars per week with board ; that he knew his sister’s handwriting anywhere; that he and his sister settled up every week of their lives, and plaintiff was present at these settlements. Lutz was then shown a memorandum book in iead pencil containing entries of regular weekly payments of three dollars each, alleged to have been made by Mrs. Staylor to the plaintiff from June 1st, 1897, to July 5th, 1899, and Lutz testified these entries were in the handwriting of his sister.

There was no heading of these entries with the name of plaintiff, nor anything on the face of the writing to show to whom the payments were made. At this point in the. testimony of Lutz, the offer was first made and refused, and as he had in no manner connected the plaintiff with these entries by his testimony, we think, the offer was properly refused at that time. Continuing his testimony, however, Lutz said, “Every Tuesday was our. settling day. John Staylor would be at my right side, and Mrs. Staylor would be sitting down just settling up the business for the week.

He (John), never missed a time getting paid to my knowledge. She always- paid him with three dollars, and he would be sitting there and he would take it; all was dotted down on that book at the time we settled ; ⁴⁶⁷ every week Johnny got three dollars and his board. I was in contact with John Staylor every day, and every hour in the day. He never said a word to me about any charges he intended to make.

The last time I saw a payment by Mrs. Staylor to John, was three weeks before she died.” The defendant then produced five witnesses whose testimony tended to prove that John Staylor had agreed to work for Mrs. Staylor for three dollars a week and board, and some of these testified they had seen these wages paid at various times, and entered by Mrs. Staylor in a book, and the defendant then renewed his offer to read these entries to the jury, which was again refused. It is of course clear, both upon principle and authority that entries made by a party himself charging another, are not admissible as evidence per se. Such entries stand upon a different footing from those made by a clerk or other person in the ordinary course of busines and contemporaneously with the transaction, and in Romer v. Jaecksch, 39 Md. 589 , it was observed that though Mr. Greeenleaf says in his work on Evidence, vol. 1, sec. 118, that in the United States this principle has been carried farther and extended to entries made by the party himself in his shop books, yet this extension of the doctrine has not been sactioned in Maryland, where the rule of the common law in this respect has not been departed from. But we think the evidence was admissible on a principle of a distinct character.

Lutz had testified that he had seen the weekly payment^ of three dollars for wages made to plaintiff by Mrs. Staylor, and entered at the time in a book in her handwriting. If a book containing such entries in her handwriting can be produced, it is certainly strong corroboration of Lutz’ testimony, and the appellant contends these entries are admissible for that purpose. In Digby v. Stedman, 1 Espinasse, 328, plaintiff had delivered to defendants a watch for repairs, and while in their hands he sold it and gave the purchaser an order for its delivery. In an action of trover, defendants claimed they had delivered it pursuant to plaintiff’s order, but the purchaser swore he had never received it.

It was proved by defendants’ shopman that ⁴⁶⁸ he had himself seen the watch delivered to the purchaser, and the defendants’ shop-books were then offered, in which was an entry of such delivery, in the handwriting of one of the defendants. On objection, Lord Kenyon said: “The entry in the book was brought to corrobrate the testimony of the witness, who had himself seen • the delivery ; that the entry should regularly be in the handwriting of the witness, 'but where the entry was made in the handwriting of another, and the witness saw it soon after it was made, and the entry had corresponded with what he had himself then observed, such was tantamount to an entry made by himself, and was therefore admissible.” In Cooke v. Curtis, 6 H. & J. 93 , the rule was laid down that, where the credibility of a witness is attacked by the opposite party his prior declarations may be given in evidence to show his consistency. In Washington Fire Ins. Co. v. Davison, 30 Md. 104 . and 105, this rule was approved, the Court, saying “we are clearly of opinion the testimony was admissible to corroborate Davison -, whose credibility had thus been impeached by defendant’s witnesses.

The ruling falls directly within the decision in Cooke v. Curtis, supra, and the rule of evidence of which that case is an illustration.” Here plaintiff’s denial that he had ever received a cent for his wages was a direct impeachment of the testimony of Lutz that he had seen them regularly paid and Mrs. Staylor’s entries being under the ruling in Digby v. Stedman, supra, tantamount to entries by Lutz himself, are his prior declarations of such payment. An illustration of the limitation upon the application of this rule is found in Stocksdale v. Cullison, 35 Md. 325 . There upon issues whether the signatures of the alleged testator and subscribing witnesses (all of whom were dead) were forgeries, the caveators gave evidence tending to implicate George Stocksdale, one of the caveatees, in the alleged forgeries, and the caveatees after offering evidence of the genuineness of these signatures, offered to prove that the day before the funeral of the deceased, the witness inquired of George Stocks-dale whether there was a will of his father’s in existence, and. ⁴⁶⁹ that he replied he believed his father died intestate ; the contention being that this answer was pertinent and proper to repel the inference of his agency in procuring the alleged forgeries, and reliance was placed upon the two cases above cited. But the Court held otherwise, because Stocksdale was not examined as a witness as he might have been, and there was therefore no impeachment of his testimony given under oath, and it was very properly added as an independent reason for the ruling in that particular case, that if his declarations had been admitted, they would have furnished no rational ground for repelling the imputations against him, because such declarations would be perfectly consistent with the concealment which always accompanies fraud.

In the leading case of McAleer v. Horsey, 35 Md. 462 , this question was very fully and thoroughly considered, and the cases of Cooke v. Curtis, and Wash. Ins. Co. v. Davison , were approved in an able opinion by Judge Miller, in the course of which he said: “Where two parties contradict each other under oath, respecting a matter occurring between themselves only, and about which they have equal means of knowledge and equal reason for accurate recollection, it is in vain to argue that one of them has not sworn falsely. The defendant’s testimony, therefore, went to a substantial impeachment of the credibility of the plaintiff. ***** The fact that it went to the jury, opened the way for corroboration, notwithstanding the disclaimer, and brings the case directly within that of Cooke v. Curtis, 6 H. & J. 93 , which was followed in Wash.

Fire Ins. Co. v. Davison, 30 Md. 91 . The first of these cases has remained unquestioned by the Courts of this State for nearly fifty years, and whilst it would not be expedient or safe to extend or enlarge its application, yet it