In order to show the actual market value of articles of
merchandise at a particular place in a foreign country, letters by
third parties abroad to other third parties offering to sell at
such rates -- if written in ordinary course of the business of the
party writing them and contemporaneously with the transaction which
is the subject of the suit -- are admissible as evidence, even
though neither the writers nor the recipients of the letters are in
any way connected with the subject of the suit and though there is
no proof that the writers of the letters are dead.
On a libel of information and seizure in the District Court for
the Northern District of California, the question was whether
certain champagne wines made at Rheims, in France, and invoiced for
this country in October, 1863, had been knowingly invoiced below
"the actual market value of them at the time and place when and
where manufactured," at which actual value the statute requires
that they should be valued. [
Footnote 1] Upon the trial, as appeared by the bill of
exceptions, the claimants introduced testimony tending
Page 70 U. S. 146
to show that champagne wines in the hands of the manufacturers
in the champagne district of France, in a manufactured state, ready
for consumption, have no fixed actual market value, and are not
sold or dealt in at the place of production. To rebut this evidence
and for the purpose of showing that such wines are held for sale at
current rates and prices, at which they are freely offered and sold
there, and also to show, among other things, the market value of
the wines in question, the United States offered in evidence seven
letters, dated on and between October 27, 1863, and May 12, 1864,
from various persons, large dealers at Rheims, where, as already
said, the wines were manufactured. One will exhibit the type of
all:
"RHEIMS, 29th of April, 1864."
"MR. AMOS HILL, OF CALIFORNIA"
"Edwards' Hotel, Hanover Square, London"
"I received the letter which you have done me the honor to write
to me, under date of Liverpool, 26th instant, and I hasten to
answer it. I sell only one single quality of champagne wine,
'Qualite Superieure,' Eugene Cliquot's brand. The price of this
wine is four francs the bottle, and four and a quarter francs the
two half-bottles, taken at Rheims, packing included, and I allow 3
percent discount for payment in cash. I know perfectly well the
kinds of wine which suit the American taste. My brand is also very
highly appreciated in New York and California. I have put the price
at the lowest that I can sell wine in consideration of the
importance of your orders, and in the hope of establishing
permanent relations with your respectable house."
"Accept, Monsieur, my hearty salutations."
"EUGENE CLIQUOT"
To the introduction of these letters the claimant's counsel
objected, assigning the same grounds which were assigned against
the introduction of certain Prices-Current in the preceding case of
Cliquot's Champagne, to-wit: because they were immaterial
and irrelevant; because they referred to champagne wines different
in kind, quality, and price from those proceeded against in this
action; because no actual sale or purchase had been or was proposed
to be proved,
Page 70 U. S. 147
based upon or connected with the letters offered; assigning also
as ground additional that these letters were
res inter alios
acta, and that the letters in reply to which they were written
were not produced.
The court below admitted the letters, and the government had
judgment. On error here, their admissibility was the point
discussed.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The only point of the several objections taken to the admission
of the letters necessary to be considered is that they were
res
inter alios acta, and hence incompetent. The others are
disposed of by what was said in the preceding case.
Page 70 U. S. 148
In
Taylor v. United States, [
Footnote 2] foreign invoices relating to goods other
than those of the claimant, and received by other merchants were
admitted to rebut the evidence given by the claimant of a general
usage to allow a deduction of five percent for measurement -- those
invoices showing no such allowance -- and a foreign letter attached
to one of the invoices, though objected to, was also received. This
Court approved the ruling of the court below. In the case of
Cliquot's Champagne, just decided, we held that the answer
of a dealer, and a Price-Current, relative to the prices of his
wines, given by him to a witness, were competent evidence.
In
Doe d. Patteshall v. Turford, [
Footnote 3] it was held by the King's Bench that
the entry by an attorney of the service on a tenant of a notice to
quit, made in the ordinary course of his business, was admissible.
In
Stapylton v. Clough, [
Footnote 4] a like entry made by an attorney's clerk
contemporaneously with the service was held to be admissible for
the same reasons, but the after parol declaration of the clerk,
offered to contradict the entry, was rejected. In this case, Lord
Campbell said,
"I entirely approve of the decision in
Doe d. Patteshall v.
Turford and the cases decided upon the same principle. They
lead to the admission of sincere evidence and aid in the
investigation of truth."
In
Carrol v. Tyler, [
Footnote 5] in
Sherman v. Crosby, [
Footnote 6] and in
Shearman v. Akens
[
Footnote 7] -- cases in
Maryland, New York, and Massachusetts -- the receipts of third
persons for money paid to them by one of the parties to the suit
were received in evidence without the presence of the persons by
whom the receipts were given. In
Holladay v. Littlepage,
[
Footnote 8] in the Supreme
Court of Appeals in Virginia, the parol declaration by a third
person of such payment was admitted. In
Alston v. Taylor,
[
Footnote 9] in North Carolina,
a receipt given by an attorney of another state for certain claims
placed in his hands for collection was held to be admissible to
show the
Page 70 U. S. 149
time at which he received the claims. In
Prather v.
Johnson, [
Footnote 10]
the Court of Appeals of Maryland said:
"If A., as surety of B., pays a debt due to C., on proof of the
payment, A. could recover of B. He could recover on C.'s
saying he had paid, and of course if C.
wrote
that A. had paid, surely it is evidence whether the writing is
in a book or
a letter."
We think the letters in question in this case were properly
admitted. In reaching this conclusion, we do not go beyond the
verge of the authorities to which we have referred. In some of
those cases, the person asserted to be necessary as a witness was
dead. But that can make no difference in the result. [
Footnote 11] The rule rests upon the
consideration that the entry, other writing, or parol declaration
of the author was within his ordinary business. In most cases, he
must make the entry contemporaneously with the occurrence to which
it relates. [
Footnote 12] In
all, he has full knowledge, no motive to falsehood, and there is
the strongest improbability of untruth. Safer sanctions rarely
surround the testimony of a witness examined under oath. The rule
is as firmly fixed as the more general rule to which it is an
exception. Modern legislation has largely and wisely liberalized
the law of evidence.
We feel no disposition to contract the just operation of the
rule here under consideration.
Judgment affirmed.
JUSTICES WAYNE, CLIFFORD, and DAVIS declared their inability to
assent to so much of the preceding opinion as decides that the
letters, written by third persons and addressed to third persons,
were properly admitted in evidence.
[
Footnote 1]
The reader who desires a full view of the nature and effect of
this statute will find it in the preceding case. The present case
involved all the questions recited in that, and the additional
point presented in the syllabus besides. Of course the latter only
is reported.
[
Footnote 2]
44 U. S. 3 How.
210.
[
Footnote 3]
3 Barnwell & Adolphus 890.
[
Footnote 4]
22 English Law & Equity 276.
[
Footnote 5]
2 Harris & Gill 56.
[
Footnote 6]
11 Johnson 70.
[
Footnote 7]
4 Pickering 283.
[
Footnote 8]
2 Mumford 316.
[
Footnote 9]
1 Haywood 395, note.
[
Footnote 10]
3 Harris & Johnson 487.
[
Footnote 11]
1 Greenleaf on Evidence ยง 120;
Holladay v. Littlepage,
2 Mumford, 321.
[
Footnote 12]
Stapylton v. Clough, 22 E. L. & E. 276.
