p. 176John S. Holm, Respondent, v. Agnes Shay, Appellant.Headnote
Evidence — self-serving declarations — prior transactions between parties.Where the agreed price of a well dug for the defendant by the plaintiff was payable only in case a serviceable well was obtained, the plaintiff in an action for the purchase price cannot put in evidence letters written by him to the defendant asserting that the well was completed and demanding payment, these being mere self-serving declarations.
Nor in such action can the plaintiff show that he made prior unsuccessful attempts to dig a serviceable well for the defendant, the losses occa'sioned thereby and the expressions of sorrow by the defendant.
Appeal by the defendant, Agnes Shay, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 28th day of October, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.
Timothy M. Griffing, for the appellant.
Rowland Miles, for the respondent.
Holm and Shay agreed that the former should dig a well for the latter at an agreed price, payable only in case a serviceable well was obtained. The plaintiff affirms, and the defendant denies, performance. The judgment should be reversed for two errors : (1) The admission of letters from plaintiff to defendant asserting the completion of the work and asking payment; (2) admission of previous unsuccessful attempts to drive wells for the defendant. The plaintiff cannot read or write. The letters were written by his daughter and copied into a book, and the letter and copy read to him. He identified the copies and they were received in evidence. This was not technically correct, but in any case the letters were mere self-serving declarations and not admissible. The plaintiff ostensibly tendered them to show an unnecessary demand. The letters were
p. 177not answered, and, as defendant testified, not received. A proper-understanding of the agreement did not require plaintiff to narrate his earlier exploits in sinking for water without success, his losses thereby and the expression of sorrow therefor by defendant. It tended to excite an interest on the part of the jury to which he was not entitled, and should be omitted. In view of a new trial it is not necessary to consider whether the facts sustain the finding of the jury.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Woodward, Jenks, Burr and Carr, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.