Zachariah Williams, Appellant, vs. Samuel C. Keyser, Appellee, 11 Fla. 234

DOUGLAS, J., delivered the opinion of the Court. This suit was brought in the Circuit Court of Santa Kosa county by Zaehariah Williams against Sam’l C. Keyser, as surviving partner of the mercantile firm of Alexander Mc-Toy & Co., which firm was composed, it is alleged, of Alexander Me Voy. Roman Mir and Samuel C. Keyser. The object of the suit is to recover the sum of $2,500, which the plaintiff alleges is due him oil a note executed by Alexander Me Voy & Go. to Samuel Stewart, and by Stewart endorsed to the plaintiff.

The defendant Keyser pleads, 1st, that at the time of the making of the promissory note he was not one of the members of the firm of Alexander Me Voy & Co., and 2d, that he is not the surviving partner of the firm of Alexander McVoy & Co. .To these pleas the plaintiff replied, and issue was joined. On the trial of the cause in the court below, the plaintiff,' to support the issue joined, called as a witness William^., Keyser, upon whom a subpoena u duces tecum” bad been served, commanding him to produce on the trial a certain paper writing, then in his possession as agent of the defendant.

On being sworn, the witness testified that a paper, writing, which he then held in his hand, belonged to the defendant, and had been left by the defendant, among other papers, with the witness for safe keeping. The plaintiff’s attorney then informed the court that the paper writing, in the possession of the witness, was a deed of indemnity given by Alex. MeYoy, M. Puig and Roman Mir to the defendant Keyser, to protect and save him harmless from any responsibility or liability growing oat of his connection with the said firms of Keyser, MeYoy & Co., A.

MeYoy & Co., or either of them, or out of any debts due by the said firms to third persons ; and offered to read it to the jury as evidence, without further proof of its execution. To this the defendant objected, which objection was sustained by the court. To sustain the issue joined, the plaintiff then offered J). H. Gliolson as a witness, who testified that he heard the defendant, in conversation with plaintiff's attorney, say that he had a writing of indemnity against this note, (meaning the note sued on,) and that he (defendant) would show it to plaintiff’s attorney or leave it with William J. Keyser.

The witness further stated that he had heard only a part of the conversation. The defendant objected to this testimony on the ground that the witness had heard only a part of the conversation, which objection was sustained by the court. From the ruling of the court below in this case the plaintiff appealed to this court, and now assigns as error— 1st.

That the court erred in refusing to allow the instrument of writing to indemnify defendant against the liability that might arise from his connection with the firms of X, I McVoy & Co. and Keyser, McVoy & Co., to be read as evidence to the jury, as tending to prove that defendant was a member of the firm of A. McVoy & Co. 2d. That the court erred in excluding the evidence of the witness Gholson from the jury. I In considering the first error assigned, it becomes neces-I sary to decide what proof is necessary in order to admit private writings to go in evidence to the jury.

The general rule is, that before they can be received in evidence their execution must be proved by the subscribing witnesses, or by proof of their hand-writing when they cannot be produced, or by proof of the hand-writing of the maker of the instrument, when there are no subscribing witnesses.

An exception to this general rule, on the subject of proving 1 private writings, is said to be where the paper is produced / by the adverse party, pursuant to notice, the party producing it claiming an interest under it; and some of the authorities say that the interest must be of an abiding nature, and ^claimed in the same cause. In tbe case of the lessees of Rhodes & Snyder vs. Selin et al., decided in the Circuit Court of the United States for the Dist. of Penn, and New Jersey, 4 Wash. Cir. Ct. Rep. 719, Mr.

Justice Washington, in delivering his opinion, says, “ if indeed the party producing the instrument, on notice, be a party to it, or claims a beneficial interest under it, these facts may well dispense with the necessity of giving further proof, because of such privity of interest, and not because of the possession of the instrument by the party against whom it is offered in evidence.” In this case, the paper writing or deed of indemnity was in the possession of William J. Keyser, who had received it from the defendant for safe keeping. It was in contemplation of law in the control of the defendant.

The act of the defendant, in leaving the paper with him, makes William J, Keyser the agent of the defendant for the safe keeping of tills paper, and tlie notice to this agent to produce it was in legal effect as valid as if served on the defendant himself. If not produced under the notice, then it would have been competent for the plaintiff to have given evidence of its contents. Sinclair vs. Stevenson, 1 Car. & Payne, 583. Was the defendant a party to the deed of indemnity, or did he claim a beneficial interest under it ?

The defendant, if not a party to the writing of indemnity by affixing his signature thereto, is clearly the party who alone claims a beneficial interest under it. It was made for his benefit alone, and to protect and save him harmless against any liability that might arise from his connection with the mercantile firms named in the deed of indemnity.

It most certainly was not made for the benefit of the parties who signed it, for they could, by no possibility, have an interest in liis exemption from liability on account of his connection with the mercantile firms named in the deed, and it was against their interest to assume the legal, obligation to protect him from such liabilities. lie was the only person who had a beneficial interest in this paper. He proves by the care he took of it, by placing it in the hands of his agent with instructions for its safe keeping, that such was his own understanding as to his interest in it.

This, act on his part, shows his interest in its preservation, his knowledge of its contents and his acceptance of and consent to the beneficial provisions for his protection. When taken in connection with the further fact that the paper was produced on notice, and was found to be in the possession of the agent of the defendant, it brings the case within thg rule of law, as laid down by Mr. Justice Washington, in the case of the Lessees of Rhodes & Snyder vs. Selin et ah, and excuses the plaintiff from offering proof of the execution of the deed of indemnity.

If the suit was against either of the parties who signed the written instrument, and not produced on notice by the adverse party, it would be necessary, before it could be received in evidence, to prove its execution, either by the subscribing witnesses, or by proof of their hand-writing, or by proof of the hand-writing of the parties who signed it.

But the deed was in the possession of the only party who could claim a beneficial interest under it, and was produced on notice, and we think it should have gone to the jury without further proof, to be considered by them in making up their verdict on the issue joined. It is objected that there was no proof offered of the deed from the defendant Keyser to McVoy, Puig & Mir, and of their acceptance of the same, which deed was the consideration for the deed of indemnity by these parties to the defendant. The paper writing executed by Alexander McVoy, M.

Puig and Roman Mir, purporting to be a deed of indemnity to Samuel C. Keyser to save him harmless against any claims or demands arising out of the copartnership of Key-ser, McVoy & Co. and A. McVoy & Co., recites: that the said Samuel C. Keyser had, by deed bearing even date with the deed of indemnity, sold all his right, title and interest in said firms, and this recital is evidence of the facts therein recited, and rendered it unnecessary to produce and prove the deed from Keyser to those parties.

The general rule of law is that the recital of one deed in another is evidence of the fact therein recited, and supersedes the necessity of introducing any other evidence to establish ft. Carver vs. Jackson, 4 Peters’ S. Ct. Rep., 83 ; Crane vs. Lessees of Morris et al., 6 Peters’, 611, 612; 9 Cowen’s Rep., 86. The second error assigned is, that the court below erred in excluding the evidence of Gholson from the consideration of the jury.

Prom the bill of exceptions taken on the trial, it appears that the witness Gholson was recalled by consent of .the Judge, and when placed on the witness stand stated that he heard the defendant say he had a writing of indemnity against this note, (meaning the note sued on,) and that he (defendant) would show it to plaintiff’s attorney, or leave it with Wm. J. Iveyser. The witness stated further, that he heard only a part of the_eonversation.

It does not appear from the bill of exceptions that the witness was interrogated as to the fact whether there was any farther conversation, and if it related to the subject matter of the deed of indemnity ; indeed that there was any further conversation can only be inferred from the statement of the witness, “ that he only heard a part of the conversation.” On the subject of admissions, it may be laid down as a first principle that the whole of the statement containing the admission is to be received together. 1 Phil, on Ev., 340. In the Queen’s case, 2 Brod, & Bing., 121, Abbott, G.

J., in delivering the opinion of the Judges, said, “the conversations of a party to the suit, relative to the subject matter of the suit, are, in themselves, evidence against him in the suit, and if counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole that was said by his client in the same conversation, not onlyr so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the

part introduced upon the previous examination, provided only, that it relate to the subject matter of the suit, because it would not be just to take part of a conversation as evidence against a partyr without giving to the party at the same time the benefit of the entire residue of what he said on the occasion.” It will be seen from these authorities that the whole of the statement containing the admission is to be received, and the only limitation to receiving in evidence the statements or admissions of parties to the suit is, that they must relate to the subject matter of the suit. The true

interpretation of this rule is, that all of the statement heard by the witness in relation to the subject matter of the suit shall be given to the jury; if there was further conversation not heard by the witness, it would be impossible for him to say that it was in relation to the subject matter of the suit, and unless it was it could not be received. The witness must state all he heard, and having done this his evidence is to be received for what it is worth. It is the whole of the statement so far as his knowledge extends.

If a witness testifies to an admission made by a party to a suit, but says “ he only heard a part of the conversation,” the court will not, in the absence of proof, infer that there was a further conversation relating to the subject matter of the suit, but will allow the statement of the witness to go to the jury, to be considered by them in making up their verdict. In the case under consideration, we are unable to see from the bill of exceptions that there was any other or further statement made by the defendant, at the time mentioned by the witness Gholson, that related to the subject matter of the suit.

Tie says he heard only a part of the conversation. If there was further conversation, which does not clearly appear, we are left to conjecture as to its purport and character, and have no evidence that it related to the subject matter involved in this suit. The well established legal rule on the subject of admissions is, if a part of a conversation is given in evidence against a party as an admission, he is entitled to have the whole conversation repeated, as well that which makes for him as that which is against him, provided it relates to the subject matter of the suit.

This rule proceeds upon the supposition that there may be other conversation heard by the witness, which he has not disclosed; and also as a direction to the court before whom the cause is tried, that the whole of the conversation that relates to the subject matter of the suit shall go to the jury.

What the witness hears of a conversation in relation to the subject matter of a suit is the whole of the conversation, so far as his testimony is concerned, and if there was a conversation with other persons at the same time, in relation to the subject matter of the suit and explanatory of that heard by the witness and not heard by the witness, it is incumbent on the party objecting to show what it was.

In the present case, what the witness heard was the whole of the conversation, so far as his testimony is concerned', and if there was a further conversation, it is incumbent on the defendant to establish its character, and this may be received in explanation of tbe testimony of the witness. So far as can be seen from the record, the whole of the conversation was given in evidence ; for if the witness Ghol-son did not hear any more of the conversation, he could not depose there was any in relation to the subject matter of the suit, and any other would be inadmissible as evidence. In the case of Collett vs.

Lord Keith, 4 Esp. Rep., 212, it was held that testimony given in court, admitting a particular fact, may be used as an admission of the fact, though the person examined was prevented from enteringinto an explanation of the circumstances under which the fact took place, because it was irrelevant to the matter in issue upon tbe former occasion.

Where aperson claims a beneficial interest under a written instrument to which be is not a party, not having signed it, bis admissions as to the purpose for which it was executed is evidence against Mm, and may be used in a suit against him without first proving its execution by those who have signed it.

If the object of tbe examination of Gholson had been to prove the contents of the paper wanting, his testimony could not be received, for the contents of every written paper are, according to the ordinary and well established rules of evidence, to be proved by the paper itself, and that alone, if the paper be in existence. 2 Brod. and Bing., 287. The bill of exceptions show, that Gholson was examined to prove by the admissions oí the defendant the existence of the deed of indemnity, and that the defendant claimed a beneficial interest under it.

What that interest is must be established by the deed itself when the question arises. The object for which his testimony was offered is proper and legal? and his evidence should have been received by the court as tending to prove the issue joined.

Upon the principles laid down in this opinion, we think the exclusion of the deed of indemnity from going to the jury without proof of its execution, and the exclusion of the evidence of the witness Gholson, as to what he heard the defendant say in relation to said deed of indemnity, was erroneous, and consequently the plaintiff should have another opportunity of submitting that evidence to the consideration of a jury.

The judgment of the court below is reversed with costs? and the cause remanded to the court below to be proceeded in in accordance with this opinion, and with instructions to award a venire facias de novo.