Fennerstein's Champagne/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.

In Taylor et al. v. United States, 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 per cent. 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, 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 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, in Sherman v. Crosby, and in Shearman v. Akens -cases in Maryland, New York, and Massachussetts-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, Executor of Littlepage, v. Littlepage, in the Supreme Court of Appeals in Virginia, the parol declaration by a third person of such payment was admitted. In Alston v. Taylor, 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 time at which he received the claims. In Prather v. Johnson, 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. 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. 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.