Bates v. Preble,
151 U.S. 149 (1894)

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U.S. Supreme Court

Bates v. Preble, 151 U.S. 149 (1894)

Bates v. Preble

No. 123

Argued November 28-29, 1893

Decided January 8, 1894

151 U.S. 149


This Court is not committed to the general doctrine that written memoranda of subjects and events, pertinent to the issues in a case, made contemporaneously with their taking place, and supported by the oath of the person making them, are admissible in evidence for any other purple than to refresh the memory of that person as a witness.

When it does not appear that such a memorandum was made contemporaneously with the happening of the events which it describes, it should not be submitted to the jury.

If such a memorandum, made in a book containing other matter relating to the issues which is not proper for submission to the jury, be admitted in evidence, the leaves containing the inadmissible matter should not go before the jury.

In such case, it is not enough to direct the jury to take no notice of the objectionable matter, but the leaves containing it should be sealed up and protected from inspection by the jury before the book goes into the conference room.

In Massachusetts, where an action in tort, grounded on fraud of the defendant, is commenced more than six years after the cause of action arose, and the general statute of limitations applicable to actions sounding in tort is set up, if the fraud is not secret in its nature, and such as cannot readily be ascertained, it is necessary to show some positive act of concealment by the defendant to take the case out of the operation of that statute, and the mere silence of the defendant, or his failure to inform the plaintiff of his cause of action, does not so operate.

Page 151 U. S. 150

This was an action at law brought by Sarah A. Preble to recover of the defendants Bates and Walley, stockbrokers, the value of certain securities, the property of the plaintiff, which she alleged had been converted by the defendants to their own use.

The facts were substantially as follows: Mrs. Preble, a widow and a resident of Portland, Maine, acquired by her husband's will certain securities, consisting of stocks and bonds, which she kept in a box in the vaults of the Union Safe-Deposit Company, in Boston. Upon the trial, she gave evidence tending to show that she entrusted the key of the box to her son, Edward Preble; that she visited the box herself in 1878, and found all her securities there; that she next visited it in the autumn of 1882, and found them all gone; that at various times between these dates, her son had abstracted these securities from the box, to which she had given him access, and had taken them to the defendants, who were stockbrokers, without authority from her, and that the defendants had sold the securities for him; that Walley, one of the defendants, had notice that the securities belonged to the plaintiff, and had fraudulently concealed from her the fact of the conversion, and that she did not discover the conversion until within six years before bringing of the suit.

Defendants claimed that some of her securities they had never sold or dealt with in any way; that others they had received from Edward Preble, and had disposed of by his directions, and upon his account, in the ordinary course of business, believing them to be his property; that they had no knowledge or notice that any of the property belonged to the plaintiff; that in fact some of the securities did not belong to her, and that if she ever had any cause of action against them for the conversion of these securities, the same arose more than six years before the bringing of her suit, and hence that such action was barred by the statute of limitations.

The jury returned a verdict for the plaintiff for $34,772.88

Page 151 U. S. 151

damages, and handed to the court with their verdict a schedule containing the special items upon which they held the defendants liable, showing the securities which they found to have been converted by the defendants, with the value of the same and the date of their conversion, from which interest was computed. Upon motion for new trial, the court held that there was no evidence to sustain the finding of the jury with respect to certain of the securities; that the value of such securities should be remitted from the verdict, or that a new trial should be granted. Judgment was finally entered for the plaintiff for $28,496.52, being the amount of the verdict less the amount remitted. Defendants sued out a writ of error from this Court.

Page 151 U. S. 154

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