BURTON V. DRIGGS, 87 U. S. 125 (1873)

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U.S. Supreme Court

Burton v. Driggs, 87 U.S. 20 Wall. 125 125 (1873)

Burton v. Driggs

87 U.S. (20 Wall.) 125


1. Where a party excepts to the admission of testimony, he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken. If he assign no ground of exception, the mere objection cannot avail him. Hence, where an original deposition, regularly taken, sealed up, transmitted, opened, and filed in the case, was lost, and a copy, taken under the direction of the clerk of the court and sworn to as a true copy, was offered in evidence in its place, an objection to the copy "on the ground that it was not the original" is too indefinite to let in argument that the witness was alive and that the lost deposition could only be supplied by another one by the same witness, and that secondary evidence was inadmissible to prove the contents of the first deposition.

2. If the objection had been made in a form as specific as by the argument abovementioned it was sought to be made, it would be insufficient, it appearing that the witness lived in another state and more than a hundred miles from the place of trial.

3. When it is necessary to prove the results of an examination of many books of a bank to show a particular fact, as ex gr. that A. B. never at any time lent money to a bank, and the examination cannot be conveniently made in court, the results may be proved by persons who made the examination, the books being out of the state and beyond the jurisdiction of the court.

4. Where one, fraudulently exhibiting to another a sealed instrument reciting that the person exhibiting it has a claim for a sum of money on a third party (he having no claim whatsoever), fraudulently induced that other to buy it from him, and such other buying it pays him in money for it and takes an assignment under seal on the back of the instrument, the person thus defrauded may recover his money in assumpsit on a declaration containing special counts setting out the instrument as inducement and averring the utter falsity of its recitations and the fraud of the whole transaction, the declaration containing also the common counts.

A certain O. A. Burton, of Vermont, in April, 1859, meeting in New York with one William Driggs, of Michigan, offered to sell to him a claim on the Bank of Tioga County, Pennsylvania, which he, Burton, alleged that he had against it, and by way of showing the reality of his claim, exhibited to Driggs a paper, under seal, executed by him, Burton,

Page 87 U. S. 126

and three other persons bearing date October 20, 1858, whereby it was recited and agreed as follows:

"That the parties had severally furnished to the Tioga Bank, to enable it to redeem its bills promptly, certain sums of money, to-wit, O. A. Burton, $7,060.18 &c.; that the bank was to refund said moneys as soon as it was in a condition to do so, and that it would lend to said parties, not exceeding $10,000 at any one time, on paper payable in New York, with interest at the rate of five percent per annum; that the Tioga Bank had advanced, to be paid in on the stock of the Pittston Bank, of Pennsylvania, $9,870, which money belonged to the four parties to the instrument, and it was agreed that each of the parties owned one-fourth part thereof, less cost and expenses."

Driggs bought the claim, paying $7,060.18 for it, and Burton made this assignment on the back of the paper which he had shown Driggs:

"For and in consideration of the sum of $7,060.18, I do hereby sell, assign, transfer, and set over to William Driggs my interest of an equal amount in the Tioga County Bank, paid in according to a certain contract made October 20, 1858, between O. A. Burton, and others, which is hereto attached, with all the rights and privileges therein which I have or should have had if this sale had not been made."

"Witness my hand and seal this 29th day of April, 1859."

"O. A. BURTON [L.S.]"

Upon presenting his newly purchased claim soon afterwards at the Tioga County Bank, Driggs was informed that Mr. O. A. Burton had no claim whatever on the bank; that he was not a stockholder in it; that his name was not to be found on its books, and that in the alleged sale a gross fraud had been practiced.

Hereupon, Driggs sued Burton in the court below in assumpsit. The narr. contained certain counts setting out the instrument which Burton had shown to him as inducement and averred that the recitals which it made were wholly false; that Burton bad no claim whatever on the bank, and that the plaintiff had got nothing whatever from it.

Page 87 U. S. 127

Burton, admitting that he had no such claim against the bank as was recited in the paper, set up in defense that he did in fact own certain powers of attorney to transfer stock in that bank executed by parties who owned such stock, and for which he paid $10,000; that he had explained to Driggs at the time of the assignment to him that such was the real nature of the claim transferred to him, and he delivered to him these powers of attorney, and that Driggs had received them and subsequently acted under them, participated in an election of directors, and assisted in redeeming the notes of the bank in circulation.

In reply, Driggs gave evidence tending to prove that this allegation was as false as had been the other, and that he never received any consideration, benefit, or return whatever, directly or indirectly, for the money paid for it.

The powers were not produced by Burton, nor did he give any evidence to show from whom he obtained them, by whom or how they were signed, in what amount, or what became of them.

Driggs gave evidence tending to prove that no such powers to transfer stock had ever been issued by the bank.

Upon these facts, Driggs sought to recover back the money paid by him upon the grounds:

1. Of the warranty of Burton, both expressed and implied, that the claim assigned to the defendant in error was genuine:

2. That the money was obtained from him by Burton, through fraud, and without equivalent:

3. That the consideration upon which the money was paid and received, had totally failed.

The case being closed, the court -- refusing several requests of the defendants for instructions, and among them a request to charge that the plaintiff was not entitled to recover on his special counts nor to recover in the action -- intimated an opinion in favor of the plaintiff, upon the first and third points. But for the purposes of the trial instructed the jury to find whether the sale and representations made by Burton were such as he alleged, or whether they were such as were

Page 87 U. S. 128

alleged by Driggs, and that if they were such as were alleged by Burton, that the verdict should be in his favor.

That if they were such as were alleged by Driggs, then to find whether or not they were true; that if true, the verdict should be in favor of Burton.

That if untrue, the jury should then find whether Driggs received any interest in the bank whatever by the assignment, or in the transaction, either such as that described in the paper or such as Burton alleged that he had transferred to him. If he did, the verdict should be for Burton.

But that the payment of the money and the execution of the assignment being admitted, if the jury found the representations to have been such as Driggs alleged; that they were untrue in fact; that Burton had no such claim as he sold, and that Driggs received nothing whatever under the assignment or in the transaction, then that the verdict should be for the plaintiff, Driggs, for the money which he had paid.

The jury found in favor of the plaintiff for the amount paid and interest, being $12,078.64; and judgment having been entered accordingly, the defendant brought the case here on error.

In the course of the trial, the plaintiff offered to read a copy of the deposition of one Vine De Pue, a person who lived in another state and more than one hundred miles from the place of trial, and whose deposition had been taken under the act of Congress authorizing depositions to be taken,

"when the testimony of any person shall be necessary in any civil cause . . . who shall live at a greater distance from the place of trial than one hundred miles."

No proof was given that the said De Pue was dead. The bill of exceptions said:

"The plaintiff proved to the satisfaction of the court that the original deposition was regularly and properly taken in this cause, sealed up, transmitted to the clerk of this court and by him properly opened and filed, all in accordance with the provisions of the act of Congress; that said deposition was lost and could not be found; that the copy offered was a true copy, taken under the direction of the clerk, and by him compared with the original and certified. "

Page 87 U. S. 129

"The defendant objected to the admission of the copy on the ground that it was not the original. The court overruled the objection and admitted the deposition, to which decision the defendant excepted."

This was the first exception.

The plaintiff then proved that the books of the Bank of Tioga County were in Tioga, Pennsylvania, where the bank itself was situated; that he had endeavored to obtain them for use on this trial, but that the officers of the bank who had them in their keeping refused to let them go away from the bank. He then offered the deposition of one C.P. Steers, and of A. C. Turner.

Steers had been cashier of the bank from the 15th of September, 1858, up to the 29th day of April 1859. He thus testified:

"During the entire period that I was cashier, I had charge of the financial affairs of the bank and was well acquainted and familiar with all the financial business and matters of the bank. O. A. Burton did not at any time during that period loan, advance, or furnish to the said Tioga County Bank the sum of $7060.18 nor any other sum of money. The name of O. A. Burton was never on the books of the bank, nor did the bank at any time during the said period owe the said Burton for advance or otherwise, and don't think that the name of said Burton appeared upon the books of the bank as a stockholder during said period of time."

Turner, former cashier of the bank, and who had served as cashier from December, 1859, to August 18, 1867, thus testified:

"In July, 1859, I made a careful examination of the books and papers of the bank for the purpose of ascertaining its condition, assets, and liabilities. I examined all the books and papers in the bank relating to its affairs from the time of its organization down to July, 1859, and on that examination I found no evidence in the bank of any kind that O. A. Burton ever had any connection with the bank, either as debtor, or creditor, or stockholder, or any interest of any kind whatever in the bank. I afterwards examined the books of the bank again at the request

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of the plaintiff in this suit, and with direct reference to the matters involved in this suit, and I did not find that on the 20th day of October, 1858, or on the 29th day of April, 1859, or at any other time, that the bank was indebted to O. A. Burton in the sum of $7060.18, or in any other sum. I did not find the name of O. A. Burton on the books of the bank in any way."

The counsel of the defendant objected to the admission in evidence of such parts of these depositions as referred to what appeared, or did not appear, on the books of the Tioga County Bank. But the court allowed the depositions as above set forth to be read.

Page 87 U. S. 133

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