There are thirty-four assignments of error in this case, many of which are of little importance, and as we have come to the conclusion that the case must be reversed and a new trial ordered, it is neither necessary nor advisable that we should dispose of them all.
(1) The seventh and eighth assignments are taken to the admission of certain pages of a memorandum book purporting to contain a list of securities owned by the plaintiff. Concerning this book she testified that "it was her own book, in her own handwriting, never seen by any one until it went into the hands of counsel; that the entries were made in it from time to time; that it showed the securities which she had, which went into the box in the safe deposit vaults." One page she testified was cut from an earlier book kept by her, which was pinned into this book, and that page showed what securities she had in her box in 1878. On cross-examination, she testified with reference to the first page, "that the figures at the top in pencil she put there when she took the page out of the other book and put it into that book. Those figures in pencil were 1877 and 1878; that she did not remember at what time she did this; that it was before 1882, and was after she cut it out of the other books; . . . that she had no memorandum except what was on that paper in the book; that some of it was written in ink and some in pencil; that what was in ink was written when it was in the other book; that the pencil part was written after it was put in this book; that the summing up was made by her, but was not correct; that at the bottom of the page the value appeared to be as of 1871; she did not know whether it was its correct value in 1871 or 1877," etc. "That the entries in her memorandum book were not reliable; that she could not tell when she made the entries upon them or when the figures were set down; that she could not tell why she made the entries, nor why she had struck out any of them." This book was sought to be used, not for the purpose of refreshing the memory of
There is no doubt that books of account kept in the usual and regular course of business, when supplemented by the oath of the party who kept them, may be admitted in evidence. Insurance Company v. Weide, 9 Wall. 677; Cogswell v. Dolliver, 2 Mass. 217; White v. Ambler, 8 N.Y. 170. But whether this rule extends to memoranda made by a witness contemporaneously with the event they purport to record, is open to very considerable doubt, elementary writers and courts being about equally divided upon the subject. 1 Greenleaf's Evidence, section 437, note 3; 1 Smith's Leading Cases, 6th Am. ed. 508, 510. In New York they are held to be admissible. Halsey v. Sinsebaugh, 15 N.Y. 485; McCormick v. Penn. Central Railroad, 49 N.Y. 303, 315. The cases in Massachusetts apparently favor a different view. Commonwealth v. Fox, 7 Gray, 585; Dugan v. Mahoney, 11 Allen, 572; Commonwealth v. Ford, 130 Mass. 64; Commonwealth v. Jeffs, 132 Mass. 5; Field v. Thompson, 119 Mass. 151. In this court it was held in Insurance Companies v. Weides, 14 Wall. 375, 380, that a statement in figures of the value of certain merchandise destroyed by fire, which statement professed to be a copy of another statement contained in a book, itself destroyed in the fire, accompanied by proof that on a certain day the witness took a correct inventory of the merchandise, and that it was correctly reduced to writing by one of them and entered in the volume burnt, and that what was offered was a correct copy, was admissible in evidence in a suit against the insurance company to fix the value of the merchandise burnt, though there was no independent recollection by the witness of the value stated. In delivering the opinion of the court Mr. Justice Strong observed: "How far papers, not evidence per se, but proved to have been true statements of fact, at the time they were made, are admissible in connection with the testimony of a witness who made them, has been a frequent subject of inquiry, and it has been many times decided that they are to be received. And why should they not be? Quantities and values are retained in
In Maxwell v. Wilkinson, 113 U.S. 656, a memorandum of a transaction which took place twenty months before its date, and which the person who made the memorandum testified that he had no recollection of, but knew it took place because he had so stated in the memorandum, and because his habit was never to sign a statement unless it were true, was held to be inadmissible. Many of the authorities are cited, but the inadmissibility of the memorandum was put upon the ground that it was made long after the transaction it purported to state. The general question of the admissibility of such memoranda as independent evidence was not, however, decided.
In Vicksburg & Meridian Railroad v. O'Brien, 119 U.S. 99, which was an action against a railroad company by a passenger to recover for personal injuries, a written statement as to the nature and extent of his injuries, made by his physician while treating him for them, for the purpose of giving information to others with regard to them, was held not to be admissible in evidence against the company, even when attached to the deposition of the physician, in which he swore that it was written by him, and that in his opinion it correctly stated the condition of the patient. Numerous authorities were cited upon both sides of the general question as to the admissibility of such memoranda, but the court held that the case did not require an examination of such authorities, inasmuch as it did not appear but that at the time the witness testified he had, "without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection there was no necessity whatever for reading that paper to the jury."
But even if it were conceded that such a memorandum as that in question made cotemporaneously with the deposit of the securities, and properly authenticated by oath of the plaintiff, would be admissible as independent evidence, the testimony of the plaintiff fell far short of establishing the requisite qualifications for its admission. It does not appear when the memorandum was made, or that it was cotemporaneous with the deposit of the securities. Upon the other hand, it seems the entries were made from time to time, though not apparently as the securities were deposited in the box. Indeed, the plaintiff swears directly that she could not tell when she made the entries upon them, or when the figures were set down; that she could not tell why she made the entries, or why she struck out any of them, and that the entries were not reliable. She further testified that she never "saw any Oregon Navigation six per cent bonds, and never saw or received any Eastern Illinois bonds; . . . that she never had any New York and New England seven per cent bonds in her possession, and never saw them in her box; that she never saw any certificate of Consolidated Virginia stock;" and yet entries relating to these securities appear upon several of the pages of the book. Upon two or three of the pages there is not an entry that has the remotest connection with the question at issue, and it is difficult to see any ground upon which these pages were admitted.
Upon the whole, we think these memoranda, if inadmissible for no other reason, were not sufficiently authenticated to make it proper to submit them to the jury.
(2) By the ninth assignment of error it appears that after the close of the case, and when the jury were about to retire to consider their verdict, the court allowed the whole of the memorandum book to go to the jury without any sealing or other protection of the leaves and pages not put in evidence. It appears that when the court admitted the leaves and pages containing the memoranda above alluded to, it directed the
(3) The errors alleged in the 30th, 31st, and 32d assignments relate to the instructions given by the court upon the applicability of the statute of limitations, and to the competency of the testimony introduced to take the case out of the bar of the statute. The Massachusetts statute provides as follows, (Pub. Stat. Mass. c. 197):
"SEC. 1. The following actions shall be commenced within six years next after the cause of action accrues and not afterwards. . . .
"SEC. 14. If a person liable to any of the actions mentioned in this chapter fraudulently conceals the cause of such action from the knowledge of the person entitled to bring the same, the action may be commenced at any time within six years after the person so entitled discovers that he has such cause of action."
It is undisputed in this case that the embezzlements which formed the subject of the action were committed between 1878 and 1882, and in the schedule brought in by the jury and handed up with their verdict, interest was computed upon all the securities alleged to have been converted from a date anterior to January 25, 1881. As the writ by which the action was begun was dated January 25, 1887, the action would appear to have been barred by the statute unless the evidence was such as to justify the jury in finding that there had been a fraudulent concealment of the embezzlement from the knowledge of the plaintiff. If the statute had simply provided that the six years should run from the discovery of the fraud, there could be no doubt of the right of the plaintiff to maintain this action, as there is no evidence that she discovered the fraud prior to her examination of the contents of her box in 1882. Such seems to have been the rule in common law actions, adopted by the Supreme Judicial Court of Massachusetts prior to the enactment of section 14. Homer v. Fish, 1 Pick. 435; Welles v. Fish, 3 Pick. 74; Farnam v. Brooks, 9 Pick. 212, 244. In construing this statute, however, the courts of Massachusetts have held in a number of cases that the mere silence of the defendant, or his failure to inform the plaintiff of the cause of action, is not such a fraudulent concealment as is contemplated by the statute, and that some positive act of concealment must be proved. Thus, in Nudd v. Hamblin, 8 Allen, 130, it was held that the omission to disclose a trespass upon real estate to the owner, if there is no fiduciary relation between the parties, and the owner has the means of discovering the facts, and nothing has been done to prevent his discovering them, is not such a fraudulent concealment
On the other hand, if the fraud itself be secret in its nature, and such that its existence cannot be readily ascertained, or if there be fiduciary relations between the parties, there need be
In this connection the court in the case under consideration charged the jury as follows:
"Now, gentlemen, I shall charge you as matter of law this: That if you believe that the defendants here were not guilty of any fraud in these transactions, if you believe that they took these negotiable securities in, if you please, the ordinary course of their business and sold them, then Mrs. Preble would not have a right in this case to bring suit for anything that took place prior to January, 1881; but, on the contrary, if from the evidence you believe that Walley, one of the defendants, conspired with young Preble to obtain these bonds and afterwards to conceal the fact from the mother, he, Edward, having the key to the safety box containing the securities, this would be evidence going to prove a fraudulent concealment of the cause of action, such as would bring it within the exception of the statute. So that, gentlemen, whether there was a fraudulent concealment of the transaction such as would make Mrs. Preble's whole claim good here turns upon the question whether you believe from the evidence which has gone in before you that the defendants here acted in the ordinary course of their business, or whether you believe upon the evidence that one of the defendants, Walley, was a co-conspirator with Preble in these transactions, and that young Preble also had the key to his mother's safe, so that, if you please, his mother with great difficulty could obtain access to it or knowledge as to whether those securities existed or not. Those rules of law, gentlemen, you will apply upon the subject of the statute of limitations."
We think the court erred in this instruction. It assumes that the same evidence which tended to show a conspiracy between Edward Preble and the defendants to obtain these bonds was also evidence of an intention on defendants' part to keep a knowledge of the transaction from the plaintiff. This, however, does not necessarily follow. If it did, the result would be that whenever a party has been guilty of a fraud, which it is for his interest should not be known by the person
Without discussing the other assignments we think the case should be
Reversed and remanded to the Circuit Court with instructions to set aside the verdict and grant a new trial.