DUNLAP v. HOPKINS, 95 F. 231

BUNN, District Judge, upon this statement of the case, delivered the opinion of the court. Upon a careful review of the record and findings in the case, we are satisfied that there is no error for which the judgment can be reversed. The conclusions of law are fully supported by tbe findings of fact, and the findings of fact by the testimony. There were a great many assignments of error, only two or three of which have been relied upon by counsel in the argument of the case. It is contended that the court erred in admitting in evidence ihe letter of the defendant, Mrs.

Dunlap, to the plaintiff, dated November 17, 1893. This letter was clearly competent as containing the written acknowledgment, signed by the defendant, of the contract of guaranty relied upon to take the case out of the operation of the statute of frauds set up as a plea. Of course, it does not make a complete case, as it neither shows any consideration for the promise nor that it was made at the time of making the loan of the bonds and the giving of the note by Dunlap. But it was a necessary and competent link in the chain of testimony to show a valid guaranty.

It contained a distinct acknowledgment of the promise to guaranty. And, although not made at the time the note was given, it is, under the decisions of the courts, a compliance with the requirements of the statute, as being a note or memorandum in writing signed by the party to be charged. The provision of the statute of Illinois (Starr & C. Ann.

St. c. 59, § 1), relied upon by the defense is as follows: • “That no action shall be brought, whereby to charge * * * the defendant upon any special promise to answer for the debt, default or.miscarriage of another person * * * unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” It will be noticed that there is no requirement that the consideration for the promise shall be expressed in writing, as is the case in some of the states.

The evidence to meet the objection of want of consideration was furnished by oral testimony of Mrs.' Hopkins and others of the time when the promise of guaranty was made, and by a letter of the plaintiff to her friend Miss Pond, dated Chicago, .April 12th, which was also admitted in evidence against the objection of the defendant. This letter was as follows: “Chicago, April 12th. “My Dear Nellie: It is past twelve o’clock, and I am still sitting up, thinking over the horrors of this day. Nellie, father is on the verge of ruin. Imagine my feelings, for the dear old man is to me the idol of my life.

You cannot imagine how my heart aches for him. He came to my room this morning to tell me of his fearful position financially. I could hardly realize that I could help it. He said that he must have some money at once, or ruin would overtake him. Naturally I said nothing of my bonds, which, upon my arrival last night, I gave to Bae to put in the safe, as I had told her to Say nothing about them. Imagine my surprise when father .said that Bae had told him I had given her some bonds to put in the safe, which I was going to sell, and that lie wanted me to help him tide over some payments coming due with these bonds.

It was a terrible moment. He assured me his note would be good, and all that. I said I would do what I could for him, and that I had little enough myself to do with, and determined to speak to Bae at once, and abide by her advice. So, on our way to the Hair Grounds, a little later, I spoke of my conversation with father, and that I didn’t think I ought to give him my bonds if he was in such financial condition, as I was a woman, and had no way of getting more. She was very nice about it, and said: ‘That will be all right. I will see papa pays you. The note will be all right.

I will guaranty that.’ So, Nellie, as long as she has property, and I am sure she is as good as her word, I have no cause to worry further; but poor father, I am so unhappy about it. I saw Carrie at the Hair Grounds. She is looking well. I will write to-morrow, as I am so distressed and tired to-night of my trip west, the Hair, the buildings, etc. I shall stay but a few days. My heart is full of father’s troubles. The letter with the little kitten came to-day. I will keep it, and give it to little Margaret. Hope you and your cousin will enjoy the theater. Write me all about it.

Don’t fail to keep me posted about everything, no matter how small, — the school, the students, the receipts, the designs sold, and tell Miss Angel I will attend to the stove matter when I return. “[Signed] Hondly yours, Ellen.” The principal contest in the case on the trial, as well as in this court, seems to have been over the introduction of this last letter.in evidence. We think the court was clearly right in admitting it in evidence as corroborative of the testimony of witnesses in regard to the lime v hen the promise was made. That was, perhaps, Hie most material question in the case.

If the promise was made after the loan was effected and the note delivered, it would be void without a new consideration, of which there was no evidence. If made at that time, it required no new consideration. If the bonds were advanced and Ihe loan made at the same time the promise of guaranty was made, and was the inducement to it, then no new or other consideration would be required to sustain the guaranty. Mrs. Hopkins had testified distinctly to the time, and there was plenty of evidence upon this question to support the finding of facts without the letter of April 32th.

We think it clear, however, that it was properly admitted as a memorandum made by the party at the timé, and now sworn to have been correctly made, in connection with the evidence of the plaintiff upon that question. So far as the question of time went, it strongly corroborates and enforces her testimony on the trial. The letter might: not be evidence for any other purpose. It is not necessary here to decide that question.

But as a memorandum of the time it was competent, as corroborative of her testimony, even though it might not serve to refresh her recollection; the letter, as she testifies, having been correctly dated on the day when the loan of the bonds was arranged for and the guaranty made. Insurance Cos. v. Weides, 14 Wall. 375; Burrough v. Martin, 2 Camp. 112; Burton v. Plummer, 2 Adol. & E. 343; Downer v. Rowell, 24 Vt. 343; Passmore v. Passmore’s Estate, 60 Mich. 643, 27 N. W. 601; Goodnow v. Parsons, 36 Vt. 46; Cornell v. Green, 10 Serg. & R. 17.

Suppose, instead of writing a letter detailing the facts to a friend, Mrs. Hopkins had made an entry of it in her note hook, slating the particular place, with the day, the hour, and minute when and where the transaction took place, and on the trial had testified that “the entry was correctly made. Can it be questioned that such a. memorandum would he received to corroborate and enforce the testimony of the witness? But the memorandum being in ihe form of a letter to a friend, does not change the application of the rule. The rule and the Reason for it are well stated by Mr.

Justice Strong delivering the opinion of the supreme court in Insurance Cos. v. Weides, supra, as follows: “How far papers not evidence per se. but. proved to have been true staiements of fact at ihe 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 boon many limes decided that they are to be received. And why should they not be? Quantities and calóes are retained in the memory with great didieuliy.

If at the time when an entry of aggregate (iuant.il,ios or values was made tiro witness lenew it was correct, it is hard to see why it is not at least as reliable as is the memory of a witness.” The letter being admissible on the question of lime, it was properly received, and there can be no presumption that it was considered' by Hie court for any other purpose. City of Yew York v. Second Ave. Ry. Co., 102 N. Y. 572, 7 N. E. 905; Transportation Co. v. Joesting, 89 Ill. 152. indeed, there was no occasion’ to consider it for any other purpose.

On the question of the making of the promise there was no need of other evidence than the plaintiff’s testimony and the defendant’s acknowledgment contained in her letter to the plaintiff of November 17th. But the record shows with sufficient plainness that it was received and considered as corroborative of Mrs. Hopkins’ testimony in fixing the time when the guaranty was made. The other assignments of error have been fully considered by the court, but we do not deem it essential to discuss them here. It is sufficient to say that we find no error in the record, and that the judgment of the court below is affirmed.