
    
      LAZARE’S EXECUTORS vs. PEYTAVIN.
    
    
      When it is doubtful, whether testimony be material, it is to be admitted. A writing produced by a party, is a begining of proof against him.
    
    
      Appeal from the court of the second district.
    
    
      Workman, for the plaintiff.
    
    
      This suit is brought to recover the amount of two years salary, due by the defendant, to the decease. M. Lazare, for his services, as manager, or overseer of the defendant’s plantation; and for another sum of one hundred dollars, due on a promissory note, with the further sum of one hundred and three dollars, for a bale of cotton, belonging to Lazare, which was sold by the defendant on his account.
    East’n District.
    April, 1821.
    The claim for the wages, is set forth in the petition, in two distinct counts; in the first, on a specific agreement; in the second, on an implied, or quasi contract for a quantum meruit; so much as Lazare’s services were reasonably worth. The defendant pleads the general issue, compensation and payment. The defendant offered, in evidence, two letters written by Lazare to him, in one of which, Lazare admits that he then owed the defendant a certain sum, two hundred and fifty dollars. It appears from these letters, that Lazare was employed in the management of Peytavin’s plantation. The plaintiff offered no written proof of a specific agreement, as to the amount of Lazare’s wages: but he proved by the uncontroverted parole evidence of Mr. T. Martin, that Lazare had actually served the defendant as his overseer, with zeal and fidelity, for upwards of two years, and that these services were well worth eight hundred dollars per annum. The defendant contended that this proof, by a single witness, was insufficient, according to the provision of the Civil Code, 310, art. 243. The objection was over-ruled by the court below; and this is the principal point in the cause which this court will have to decide.
    We maintain, that proof by a single witness was admissible on two grounds, pursuant to the exceptions specified in the 244th, 246th, articles following, that which contains the general rule on which the defendant relies.
    The uncontroverted testimony of a single competent and credible witness, was sufficient in this case, because there existed a beginning of proof in writing.
    1. In the letters of Lazare, which the defendant made evidence for us, by introducing them as evidence for himself.
    A beginning of proof in writing is said of any act proceeding, or emanating, from him against whom the demand is made. It is not requisite that the act should be written or signed by him. If he offer, or publish it in any manner as his own act, or as an act which he admits to be worthy of credit, such act comes within the spirit, and even within the letter of the law. Pothier gives many examples (2 Oblig. no. 767, 770, 772,) of this inchoate proof in writing. In the last mentioned number, he observes, “the instrument written by him who demands to offer the proof, cannot avail him as an inchoate proof, because one cannot make titles, or evidence for himself.” This is incontrovertible. But when our adversary adduces our letter in evidence, it is he, not we, who makes that letter a title for us. It is with such letters, as with verbal confessions or admissions. The whole of them must be taken together. If one part be made evidence by a party, the rest must unquestionably be evidence also, so far as it relates to the matter in dispute. See Desquiron de la preuve par temoins, p. 193, to 197, Code, lib. 4, tit. 19, lib. 5, 6 & 7. Febrero, part. 2, lib. 3, c. 1, sec. 7, no. 328. Phillips' on Evidence, 79 & 80, with the cases referred to in the notes: also, p. 212. If the party who has only called for books and papers, inspects them, he thereby makes them evidence for the other party, although he has not used them himself in evidence. Wharam vs. Routledge, 5 Esp. N. P. C. 235, where he actually does make such use of them, there can be no doubt that he thereby makes them evidence for his adversary, as well as for himself.
    2. I think there is also a commencement of proof in writing, in that part of the defendant’s answer, in which he pleads payment; should it appear that any thing is due to the petitioner. The admission is very cautious, but it affords a strong presumption, which is all that this species of inchoate proof requires, that there was something due to Mr. Lazare by the defendant. This admission can hardly be considered as destroyed by the previous formality of the general issue. The just observations of this court in the case of Nagel vs. Minot, 8 Martin, 493, seem applicable to this part of our argument.
    But should any doubt exist as to our commencement of proof by writing, there can be none, I conceive, that we come fully within the first exception of the 246th article; that exception which allows the testimony of a single witness to prove the obligations arising from implied, or as our Code styles them, quasi contracts. The doctrine of recovering quantum meruit, for services for which no specific agreement was made, has been recognized by this court, in 2 Martin’s Rep. 273; 3 Martin’s Rep. 608, and in various other cases. Desquiron, in liv. 2, sec. 7, has many excellent observations on the articles of the French Civil Code, (1348) from which the exception in question has been transcribed into ours.
    “A law, say the court, intended to guard against the abuse of verbal evidence, can be invoked only by those who deny absolutely the execution of the written act, the existance of which is offered to be proved by parole. Is there in this case an absolute denial that the note sued upon did ever exist? We think not. There are, to be sure, in the answer, expressions which would amount to that, if they stood alone. But the defendant pleads specially, in a manner which destroys their force. Special pleas must be consistent with the general one, not contradictory to it.”
    The defendant’s plea of compensation is inadmissible, and ought to be rejected, for its want of particularity and precision. He who offers this exception should do it in such a manner that it may appear to the court, that the debt which he claims, is such a one, as may be lawfully set off, against that which is claimed of him by the plaintiff; agreeably to what is ordained, in our Civil Code, 298, sec. 4.—Besides, the defendant pleading a set off, assumes the character of a plaintiff. Nam reus in exceptione actor est. D. 44, 1, 1. In exceptionibus dicendum est, reum partibus actoris fungi oportere; ipsumque exceptione velut intentionem implere. Sec. 3, idem erit dicendum et si ea pecunia petatur, quæ pensata dicitur. D. 22, 3, 19. La compensation tiene naturaleza de accion. Febrero, p. 2, lib. 3, c. 2, sec. 4, n. 186, 187. (Febrero in this part of his work, treats the subject of compensation very fully.) So completely is the plea of set off, considered as an action, in this state, that, by a particular statute, the defendant who makes that plea, may, if he can prove that his debt exceeds the amount claimed of him, by the plaintiff, recover judgment, and obtain execution against the plaintiff, for the overplus. From all this it follows, incontrovertibly, that a plea of compensation, should set forth the cause, nature and amount of the debt to be set off, with the necessary circumstances of places and dates, in the same manner, and with the same certainty and precision, as a plaintiff is required to state his demand in his petition. The reason is obvious; without all these circumstances, the plaintiff could not come prepared, with proof to contest the defendant’s claim. Without this certainty and particularity as to the nature of the debt pleaded in compensation, the plaintiff could not afterwards plead a judgment in the defendant’s favor on that plea, (if the defendant should succeed in establishing it) in bar to another suit, which the defendant might bring against him, for the very debt which he had before pleaded, and obtained credit for, by way of compensation. Ita tamen compensationes objici jubemus, si causa ex qua compensantur, liquida sit, & non multis ambagibus innodata, sed possit judici facilem exitum sui prœstare. Hoc itaque judices observent, & non procliviores ad admittendas compensationes existant, nec molli animo éas suscipiant: sed jure stricto utentes, si invenerint eas majorem & ampliorem exposcere indaginem, eas quidem alii judicio reservent. Code, 4, 31, 14.
    In the present case, the defendant’s plea of set off is destitute of every circumstance with which such a plea, should be set forth and specified. The answer states, merely that, if the defendant owes the plaintiff’s testator any thing, it is more than compensated, by what the testator owed to him. No evidence on such a plea was admissible; but, as the plaintiff is very desirous of a final settlement of this affair, he has not appealed from the decision of the court below, on this point, being satisfied with the judgment, as it now stands.
    Lastly, if the defendant’s plea of compensation, and the evidence on it were admissible, the verdict and judgment may still remain good. For the sum, given by that judgment to the plaintiff, is not equal to the sum that would remain, after deducting from the amount clearly proved, to be due to him, the sum mentioned in Lazare’s letters to have been at one time, owing by him to the defendant. The whole sum due to the plaintiff, according to the evidence on the record, would be about $1800. The sum stated in Lazare’s letter, is but $250, and the verdict is only for $1309, and 36 cents. So that it would appear that the jury gave more than full credit to the defendant, for the amount offered in evidence, under his plea of compensation.
    No argument was offered on the part of the defendant.
   Porter, J.

On the trial of this cause, which was to recover the value of wages due to the plaintiff’s testator, for services rendered as an overseer, the defendant, who had plead the general issue, payment and set off, offered to read a letter written by the deceased; in which he requested Peytavin, against whom this suit is brought, to sell a bale of cotton belonging to him. The introduction of this letter was objected to, and the court sustaining the objection, a bill of exceptions was taken.

Judge Martin has gone so fully into the case, that I shall confine myself to a very concise statement of the reasons which induce me to think, this cause should be remanded.

As the evidence offered was pertinent and applicable to the issues formed by the pleadings, I think it ought to have been received. The reason given by the district judge, that it should not go to the jury, because it did not prove that Lazare ever took the bale of cotton, is not satisfactory to my mind. That was not deciding, whether the evidence was legal or not, but deciding how much it proved; or in other words, what conclusions should be drawn from it. This it was not, in my opinion, the province of the judge to determine.

It is true, courts refuse parties the permission to put questions to witnesses wholly impertinent to points at issue; and they reject any legal evidence, which it is clear would prove nothing in the cause. But in the exercise of this power great caution is necessary, and whenever it is doubtful, whether the testimony offered be material or not, it should be suffered to go to the jury.

Another bill of exceptions was taken, to the judge refusing to charge the jury, that one witness was incompetent to prove the contract as overseer, at the rate of $800 per annum. I am of opinion, that as there was a commencement of proof in writing, the judge did not err in refusing to give the charge requested.

The only doubt which could be raised is, whether a letter, written by the plaintiff, and voluntarily produced by the defendant as evidence, can be considered as a writing emanating from the latter.

Our Civil Code does not require, that the writing which is to serve as the basis for the introduction of parol testimony, should be signed by the party; it is sufficient if it proceeds from him.

This provision was introduced, to guard against the abuses of parol evidence, in proving contracts above a certain amount. The object of the law I think as well secured, when the party furnishes the ground for the testimony, by the voluntary production of writings within his own power, as if his adversary presented a paper with his signature affixed to it.

Pothier in his Treatise on Obligations, n. 772, it is true, states, that an act written by the party requiring the proof, cannot serve as a commencement of proof, because no person can make evidence for himself. But this reason fails here, and with it the rule. When a paper is introduced, the whole must be taken together. If it proves against the party by whom it was written, it is also evidence in his favour. It cannot be divided. See Phillip’s on Evidence, (edit. 1820) 79.

Recurring to the first bill of exceptions, the only doubt I have had in this case is, whether the court ought not to take the letter, which was rejected on the trial below, as proved, and proceed to give judgment on the merits. But, on reflection, I am convinced, that as the record does not contain any evidence it was written by the plaintiff’s testator, we are not authorised to consider it as proved, because it was rejected as containing nothing material to the question at issue. The cause must therefore be remanded for a new trial, with directions to the judge to receive in evidence the letter referred to in first bill of exceptions, and the plaintiff and appellee pay the costs of this appeal.

Martin, J.

The plaintiff claims wages, earned by his testator, as agent and overseer of the defendant, during two years, on a special agreement, at the rate of $800 a year, and the petition has a count on a quantum meruit. Farther he claims the value of a bale of cotton of his testator, sold by the defendant, and the further sum of $100, the amount of a draft of the defendant, on the plaintiff’s testator.

The defendant pleaded the general issue, set off, and payment.

The plaintiff had a verdict and judgment for $1309 36 cents, and the defendant appealed.

Our attention is first arrested by two bills of exceptions, taken by the defendant and appellant. A third, which was taken by the plaintiff and appellee, will not be considered, as he did not appeal.

1. The first is, to the opinion of the district court, in refusing to admit in evidence, a letter of the plaintiff’s testator, to the defendant, containing expressions, in the French language, which are literally rendered by these: “If R. has not told you to sell the bale of cotton, which you have of mine, sell it. I will take one of yours, which I will have carefully weighed, and he who may be found the debtor shall pay.”

2. The second is, to the refusal of the court, to charge the jury, that a contract for wages, at the rate of $800 a year, for two years, was not legally proven by the oath of a single witness.

I. Had this letter gone to the jury, the defendant might had insisted, (with what success it is not our business to inquire) that the sale of the plaintiff’s testator’s bale of cotton, by the defendant, did not expressly bind him to the payment of its value in money, but only to suffer the testator, or his representative, to take one of the defendant’s bales. The letter is evidence, that the writer, at the period of its date, had in his possession, at least within his reach and controul, bales of cotton of the defendant, and unless it was shewn, that he had not time to take one of them, or was prevented from doing so, might have induced the jury to reject the claim. I think it was legal evidence for the defendant, and the jury alone were judges of its weight.

II. The plaintiff’s counsel admits the general principle contended for by the defendant; but urges, that the present case comes within the exceptions of the Code, as there is a beginning of proof in writing, as the claim arises on a quasi contract.

1. The beginning of proof is presented to us in a letter of the testator to the defendant, produced and read to the jury by the latter, and in the plea of payment.

Letters of a party establishing a contract, the existence of which is put in issue, are certainly written evidence against him, and if introduced by the opposite party, are evidence for the former and against the latter; and I think, the letter, if containing a beginning of proof of the contract in issue, authorised the jury to find a verdict on the testimony of a single witness.

In this letter, the deceased informed the defendant, that he had, in vain, endeavoured to procure for him a few hundred dollars from one of his neighbours; that, in a few days, the cotton would be all cleaned; that it was dying almost as fast as it came up; that he put new seed where wanted; that as soon as all the cane would be up, he would put all the hands in the field; that there was nothing new, except that he had many sick negroes.

It appears to me, that if the deceased had been sued for neglect in the management of the defendant’s farm, as his overseer, and had denied his being the overseer, this letter would have been strong evidence of his being so; of a contract to oversee the plantation; and as in the present case, the letter was offered by the latter, it is evidence, and written evidence proceeding from him, of a contract between the parties, that one of them should act as an overseer for the other.

I therefore conclude, that the letter offered in evidence by the defendant, is, in the words of the Code, an act in writing, which proceeds from him, and renders the fact (of the plaintiff’s testator having been his overseer) probable, and that the judge ought not to have charged the jury in the manner required by the defendant’s counsel.

This renders it, perhaps, unnecessary to examine the other points, but as the opinion which I have just emitted, may not be that of the court, I have examined them.

The position charges a contract, in a two-fold way, one for a special sum or consideration; and on a quantum meruit. In either case, the proof of a convention is necessary to support the allegation.

Conventions are not always made by express words, nor always by words. La convention sans ecrit se fait verbalement, ou par quelqu’ antre voye qui marque, ou presuppose le consentement, 1 Domat 1, 1, 10. Tacite consensu convenire, 1. 2, ff. de part. Sed & nutu solo, pleraque consistunt, 1. 52, sec. 10, ff. de obl. & art.

Domat puts the case of a deposit, and says, that he who receives one, binds himself without speaking. Now deposit is conventional, or judicial. A deposit is a contract. Civ. Code, 410, art. 1 & 2. It is either voluntary or necessary. id.

A beginning of proof in writing is not required, for the proof of a contract by one witness, when the value of its object does not exceed $500. It is not required, in case of a necessary deposit, id. 312, art. 246. In that of a voluntary one, the beginning of proof is, therefore, needful; and Domat says, that the person who receives a deposit (voluntary or necessary) without speaking, contracts all the obligations of a depository. Contracts and conventions exist, and in their full force, in cases in which the parties give only an implied assent, and these do not fall into the class of quasi contracts, from which they must be distinguished.

The letter referred to in the first bill of exceptions, marked A, in the record, and bearing date of Donaldsonville, March, 1819, without any mention of the day, having been rejected by the court, when it was offered in evidence, nothing shews, although a copy of it comes up, that it was proven; we, therefore, cannot receive it in evidence. If it had been, it would be proper to enquire, whether all the evidence being before us, we ought to pronounce on the merits; or whether, as the defendant prayed for a jury, (notwithstanding special facts were not submitted) the case ought to be remanded.

Upon the whole, I think we ought to remand it, with directions to the district court, to allow the letter referred to in the first bill of exceptions, to be proven and read to the jury. The costs of the appeal to be borne by the plaintiff and appellee.

Mathews, J.

I concur in the opinion pronounced.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the cause be remanded for trial, with direction to the judge, to allow the letter referred to in the first bill of exceptions, to be proven and read to the jury; and it is further ordered, that the costs of this appeal be borne by the plaintiff and appellee.  