A witness interested to diminish certain admitted items in the
plaintiff's account is still a competent witness to disprove other
items.
The defendant having read a letter from the plaintiff's agent in
answer to a letter from himself cannot give in evidence a copy of
his own letter without proving it to be a true copy by a
witness.
To introduce into a cause the copy of any paper, the truth of
that paper must be established and sufficient reasons for the
nonproduction of the original must be given.
The court is bound to give an opinion to the jury on a question
of law upon request if it be pertinent to the issue, but not if it
involve a question of fact.
This was an action of assumpsit brought by the plaintiffs in
error, subjects of Hamburgh, to recover the balance due upon an
account current, the debit side of which consisted principally of
the following charges,
viz., insurance made in Hamburgh on
the defendants' ship
Abigail from the United States to
Hamburgh, and on the ship and cargo from Hamburgh to the Havana,
and on an intended voyage back from the Havana to Hamburgh;
advances made to the defendants to make up a cargo to the Havana;
bills of exchange accepted and paid; cash advanced, and
commissions, charges, and interest.
Page 8 U. S. 63
The credit side consisted chiefly of the proceeds of the freight
of the ship and of sundry articles of merchandise; remittances by
bills of exchange; the sales of the ship (she having been condemned
and sold in London by virtue of a bottomry bond given by the
defendants to the plaintiffs), and of five percent of the premium
of insurance on the intended return voyage from the Havana to
Hamburgh, the same having been returned by the underwriters to the
plaintiffs, in consequence of the ship's having finished her voyage
in the United States instead of returning to Hamburgh.
At the trial below, the plaintiffs took a bill of exceptions,
which stated,
1st. That the defendants offered as a witness one Peleg
Remington, who had become jointly and severally bound with the
defendant Carrington in a bottomry or
respondentia bond to
the plaintiffs in the sum of $31,950, conditioned to pay to the
plaintiffs that sum on the return of the ship to Hamburgh, the same
being the amount advanced by the plaintiffs to the defendants in
Hamburgh, and that the ship should so return, for which advance,
with other demands, this action was brought. To the admission of
which witness the plaintiffs objected, contending that he was
interested to diminish the balance due from the defendants to the
plaintiffs. But the defendants insisted he was a competent witness
as to all the items of the account except the advances for which he
was bound, particularly with respect to a charge of $13,718.56 for
premium of insurance on the intended return voyage from the Havana
to Hamburgh, and which voyage the defendants contended was never
begun, and therefore they ought not to be charged with that
premium, and especially as the defendants had expressly waived all
objections to every other part of the plaintiffs' account.
Whereupon the said witness was suffered by the court to testify as
to the charge of that premium only. The bill of exceptions states
it as admitted that by the law of Hamburgh, the underwriters are
not bound to return the premium upon a change of the voyage unless
that change be notified before the vessel sails.
Page 8 U. S. 64
2d. That the defendants offered in evidence a paper purporting
to be a copy of a letter from the defendant Carrington to Smith
& Ridgeway of Philadelphia, the correspondents of the
plaintiffs, and a letter from Smith & Ridgeway to Carrington
purporting to be an answer thereunto, but gave no proof that the
said copy of Carrington's letter was a true copy of the original,
but it was not denied to be in his handwriting, and it was proved
that he was in Canton, and not in the United States, at the time of
trial, and had been in Canton for two years before, but had been
corresponded with on the subject of this action since its
commencement. Whereupon the court permitted the copy and the letter
to go in evidence to the jury.
3d. The plaintiffs, after stating in the bill of exceptions and
referring to all the testimony and other evidence in the case, but
not stating distinctly the material facts which they supposed to be
the result of that testimony and evidence and on which their prayer
was founded, prayed the court to declare its opinion to the jury
whether, if the plaintiffs had actually paid the premium to the
underwriters before notice of the change of the destination of the
ship, they had a right "under the circumstances of the case" to
recover the same of the defendants. But the court refused to
deliver an opinion particularly thereon.
4th. The bill of exceptions further stated that the court, prior
to the request last mentioned, declared to the jury that
"The case wholly turned upon the point whether or not the
defendants had given due and seasonable notice of the change of the
destination of said ship. That it was a question proper for the
jury to decide whether such due and seasonable notice had been
given, and that if they were of opinion that it had been so given,
on considering the whole of the evidence, they ought not to allow
the plaintiff's said charge for the said premium, and with that
direction left the same to the jury, and the jury aforesaid then
and there gave their verdict for the plaintiffs for the sum of
$13,677.08 only, and disallowed the said charge and demand of the
plaintiffs for the said premium
Page 8 U. S. 65
of insurance, except one-half percent which the jury
allowed."
The errors assigned by the plaintiffs in error were
1st. That the court admitted Remington to testify to the point
and under the circumstances mentioned in the bill of
exceptions.
2d. That the court admitted the writing purporting to be a copy
of a letter from the defendant Carrington to Smith & Ridgeway,
and a writing purporting to be a letter from Smith & Ridgeway
to the said Carrington, to be read in evidence, as stated in the
bill of exceptions.
3d. That the court directed the jury that the case turned wholly
upon the point whether due and seasonable notice had been given by
the defendants of the change of the voyage, as stated in the bill
of exceptions, and that this was wholly a question of fact which it
was their exclusive province to determine.
4th. That the court refused to direct the jury, in case it was
fully proved to their satisfaction, that the plaintiffs had paid
the premium in question previous to any notice or information
whatever of the change of the voyage, as stated in the bill of
exceptions, that they were entitled to recover of the
defendants.
Page 8 U. S. 69
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This case comes up on exceptions to certain opinions given by
the judges of the Circuit Court of Rhode Island at the trial of the
cause before them.
The first exception is to the admission of Peleg Remington as a
witness.
This exception appeared to be abandoned by the counsel in reply,
and is indeed so perfectly untenable that the Court will only
observe that Peleg Remington does not appear to have been
interested in the event of the cause in which he deposed, but
certainly was not interested in the particular fact to which he was
required to depose, and was therefore clearly a competent
witness.
Page 8 U. S. 70
The second exception is taken to the opinion of the court
admitting as evidence a paper purporting to be the copy of a letter
written by the defendant Carrington to Smith & Ridgeway of
Philadelphia, the correspondents of the plaintiffs, and also a
letter from Smith & Ridgeway to the defendant Carrington
purporting to be an answer to the said letter.
To the admission of the letter of Smith & Ridgeway no just
objection appears. The verity of that letter is acknowledged on the
face of the bill of exceptions, and no cause is stated why it
should not have been read to the jury. But the admission of the
copy of a letter written by one of the defendants stands upon
totally different ground.
To introduce into a cause the copy of any paper, the truth of
that copy must be established and sufficient reasons for the
nonproduction of the original must be shown.
If in this case the answer of Smith & Ridgeway had
authenticated the whole letter of Carrington, the copy of that
letter need not have been offered, since its whole contents would
have been proved by the answer to it. If its whole contents were
not proved by the answer, then the part not so proved was totally
unauthenticated, and may have formed no part of the original
letter. In this case, the answer cannot have authenticated the
copy, because the bill states that the defendants gave no proof of
its being true. This copy therefore, not being proved to be a true
copy, ought not to have gone before the jury. Into its importance
or operation this Court cannot inquire. It was improper testimony,
and a verdict founded on improper testimony cannot stand.
For this error the judgment must be reversed and the cause
remanded to the circuit Court of Rhode Island to be again
tried.
The third exception is taken to the refusal of the court to give
an opinion on a question stated by the counsel for the plaintiffs.
The difficulty of deciding on this exception does not arise from
any doubt which
Page 8 U. S. 71
ought to have been produced by the facts in the cause, but from
the manner in which the question was propounded to the court.
After a long and complex statement of the testimony, the counsel
for the plaintiffs requested the court to declare whether,
"if the plaintiffs had actually paid the said premium to the
underwriters before any notice of the change of the destination of
the ship, they had a right under the circumstances of the case to
recover the same of the defendant."
To this question the court refused to give an answer.
There can be no doubt of the right of a party to require the
opinion of the court on any point of law which is pertinent to the
issue, nor that the refusal of the court to give such opinion
furnishes cause for an exception, but it is equally clear that the
court cannot be required to give to the jury an opinion on the
truth of testimony in any case.
Had the plaintiffs' counsel been content with the answer of the
court to the question of law, he would have been entitled to that
answer; but when he involved fact with law and demanded the opinion
of the court on the force and truth of the testimony by adding the
words "under the circumstances of the case," the question is so
qualified as to be essentially changed, and although the court
might with propriety have separated the law from the fact and have
stated the legal principle, leaving the fact to the jury, there was
no obligation to make this discrimination, and consequently no
error was committed in refusing to answer the question
propounded.
The record also exhibits a part of the charge given to the jury
on which the counsel for the plaintiffs have argued as if it
composed a part of the bill of exceptions. It is in these
words:
"And the said court, prior to the request last mentioned, did
declare and give its opinion to said jury that the case wholly
turned upon the point whether or not the said defendants
Page 8 U. S. 72
had given due and seasonable notice of the change of the
destination of said ship. That it was a question proper for the
said jury to decide whether such due and seasonable notice had been
given, and that if it was of opinion it had been so given, on
considering the whole of the evidence, it ought not to allow the
plaintiffs' said charge for said premium."
That a party has a right to except to a misdirection of the jury
contained in the charge of the judge who tries the cause is settled
in this Court.
Church v.
Hubbart, 6 U. S. 187.
That the opinion which the record ascribes to the judge in this
case is incorrect unless some other part of the charge shall have
so explained it as to give to the words a meaning different from
that which is affixed to them, taken by themselves, is the opinion
of this Court.
The judges instructed the jury
"that the case wholly turned upon the point whether or not the
defendants had given due and seasonable notice of the change of the
destination of the said ship,"
and that if it was of opinion that due and seasonable notice had
been given, it ought to find against the plaintiffs on the question
of their right to recover the premium advanced by them for the
defendants.
Due and seasonable notice must have been given as soon after the
destination of the vessel was changed, as it would have been given
whether the premium had or had not been advanced by the plaintiffs
before they received it, or this direction must have left it to the
jury to determine whether notice was or was not due and seasonable,
although it might not have been received by the plaintiffs before
they had actually advanced for the defendants the sum in
contest.
On the first exposition, these words would amount to a clear
misdirection of the jury, because if the plaintiffs had paid to the
underwriters, at the request of the defendants, the premium of
insurance before they received notice countermanding the directions
to make such payment, the right given by subsequent
circumstances
Page 8 U. S. 73
to the insured to demand its return from the underwriters could
not affect the claim of the plaintiffs on the defendants for money
fairly advanced by them for the use of the defendants.
If the latter construction be adopted, there was still a
misdirection on the part of the court. The judge ought not to have
left it expressly to the jury to decide whether notice given
immediately after the change of the destination of the vessel could
be due and seasonable notice unless it was received before the
premium was advanced.
It is, however, not material to the present cause to determine
whether this exception does or does not exhibit a misdirection to
the jury, since we are unanimously of opinion that for admitting a
paper purporting to be the copy of a letter from Edward Carrington
to Smith & Ridgeway to go to the jury which was not proved to
be a copy, the judgment must be reversed.
Judgment reversed.
