CROCKER et al. v. LEWIS, 6 F. Cas. 831

STOBY, Circuit Justice.. Two points have . been argued upon the motion for a new trial. The first respects the admission of the parts of the deposition of Gordon Winslow, to go as evidence to the jury, which were objected to by the defendant. The second respects the rejection of the letter of the same witness, which, it is supposed, had a .tendency to qualify the statements in the deposition. Upon the first point there does not .seem to me to be any difficulty whatsoever.

The real question between the parties at the trial was whether there had been any false and fraudulent representation by the defendant, that he had given five dollars an acre and upwards for the lands sold to the plaintiffs. Now, it is ■ apparent from the whole evidence in the present case, that the representations made by Lewis in his conversations with Winslow were communicated by the latter to Crocker (the plaintiff) and constituted the ground upon which the plaintiff entered into the subsequent contract with Lewis.

No principle seems better founded .than this, that if a party makes a representation to one person in respect to a sale, and that representation constitutes the basis of a subsequent sale made, by the party so making the representation, to the party to whom it is communicated by the third person, it is treated in the same way as if directly made by the vendor himself. It is by no means true that representations made to third persons are to be treated as res inter alios acta, if those representations have been communicated and acted upon by another person, who places entire confidence in them.

The case of Barden v. Keverberg, 2 Mees. & W. 63, 64, where the court thought that representations made by a married woman to third persons, that she was a feme sole might, if communicated to the plaintiff by such third persons, entitle him to the same benefit as if made to himself.

But in the present case, it is not necessary to rely on this ground; because, it is clear that the original contract made between Lewis and Winslow, and that made between the latter and the plaintiffs, for the purchase of the land, were for a different proportion from that, which was finally agreed upon by all the parties; and the conversations respecting the purchase between Lewis and Win-slow were proper to explain the nature and character and circumstances under which the new contract, substituted for the original contracts between all the parties, and with the consent of all, was entered into.

By the original contract Winslow with Lewis was to have a half, or a quarter, of the land, at his election. By the original contract of Win-slow with the plaintiffs they were to take a quarter of the purchase. By the substituted contract, Winslow was to take one third, and the plaintiffs one third. And it seems to me that it was proper for the jury to take ail the negotiations of the parties into consideration in order to determine whether the defendant had been guilty of the false and fraudulent representation complained of.

Indeed, in a case of this sort, it may fairly be presumed that, if Lewis falsely and fraudulently misrepresented to Winslow the sum which he had given or was to give for the land, the presumption would be strong, that he would not hesitate to make a like misrepresentation to the plaintiffs. In this view the evidence was properly admissible, as corroborative evidence.

But it appears to me, that there is very strong reason to believe, that Lewis, at the time when the final contract was made with the plaintiffs, had full knowledge that his prior conversations with Winslow had been communicated to the plaintiffs, and constituted the basis of their arrangements with Winslow. If so, there is the best reason why those conversations should be given in evidence to the jury.

And under all the circumstances, it seems to me that it was fit for the jury to have the whole evidence before them, so that they might pass their judgment upon this very important fact As to the second point, the rejection of the letter of Winslow, it is very clear that it was not admissible, except for the purpose of contradicting or qualifying some of the statements made by Winslow in his deposition, and thus affecting the credibility of his testimony. For any other purposes, or to establish any other independent facts, it would not be admissible, as it would ^e mere hearsay, and not under oath.

Now it is not pretended that there is any contradiction between that letter and Winslow’s deposition. Is there, then, in it any qualification of his testimony which would justly affect his credibility? It is said, that the contents of the letter have a direct bearing on the answers of Winslow to the sixth and seventh cross interrogatories of the defendant, and show the influences under which Winslow gave his testimony. The- sixth cross interrogatory (which was objected to by the plaintiffs) Is, “Was not Mr. Crocker offered six dollars an acre for a part of his purchase by Mr.

Kinsman, one of the explorers?" The answer is, “Mr. Kinsman was desirous of purchasing a quarter of the township, and if he took it the price was to be six dollars an acre. And it was agreed between Mr. Lewis, Mr. Crock-er, and myself, that we should each let him have one twelfth of the whole, which would make a quarter. He was to have it. if he met us at Portland on a day appointed. He did not come to Portland, nor did he take the land.” The seventh cross interrogatory is, “Did not Mr. Crocker say on our way to Portland, that he hoped Mr.

Kinsman would not get to Portland in season to get the land of us, as he would rather keep the land than sell' it at six dollars?” The answer is, “I understood him to say so. We all felt very well satsified with the land at that time. We had bonded it at eight dollars, as abovemen-tioned.” Now, it seems to me, that there is not the slightest qualification of the terms of these answers in any part of the letter written on the fifth of July, 1S30. On the contrary the language of the letter entirely corroborates •these answers. By “the general,” in this letter it is admitted that Mr.

Kinsman is meant;' so that it is palpable, that the statement, In the answers that Hr. Crocker was well satisfied with his bargain, and did not wish to sell to Kinsman at six dollars, is fully confirmed. In truth the letter contains no direct averment on the subject; but it only interrogates Lewis, as to certain supposed facts, which, from the manner in which the interrogatories are framed, taken in connection with the situation of the writer, it may fairly be presumed he believed to exist.

If I had sat at the trial, it is not improbable that I should have leaned in favor of its admission, not because I should have thought that it shook the credibility of Winslow’s testimony, for I think it corroborates it; but because where evidence seems unimportant in its bearings my inclination rather is to admit it, unless clearly irrelevant, in order to avoid a motion for a new trial, in case of its rejection. But, called upon at this time to •consider its admissibility upon strict legal principles, my judgment is that it was rightly rejected.