
    Dunlap v. The Dennison Lumber Co.
    
      (Decided July 26, 1927.)
    
      Mr. W. S. English, and Mr. W. B. Stevens, for plaintiff in error.
    
      Messrs. Wilkin, Fernsell, Fisher <& Limbach, for defendant in error.
   Houck, J.

The errors herein complained of are claimed to have occurred in the trial to a jury in the common pleas court of Tuscarawas county. The parties stand here in the same relative position occupied in the court below.

The undisputed facts are as follows: On or about the 4th day of December, 1923, the defendant, being indebted to the plaintiff in the sum of $2,000, executed and delivered to plaintiff its promissory note for the payment of $2,000, 60 days after date, at the Dennison National Bank of Dennison, Ohio, with interest at the rate of 7 per cent, per annum. On or about the 7th day of December, 1923, the defendant executed and delivered to plaintiff another note for the payment of $2,000, 60 days after date, with interest at the rate of 7 per cent, per annum. The note dated December 4,1923, was discounted by the plaintiff at the Dennison National Bank, and the same was paid by the defendant in the following manner: By chfeck No. 545, dated February 11,1924, $1,000; by check No. 560, dated February 23, 1924, $1,028.29.

On the 19th day of March, 1926, the plaintiff took a cognovit judgment against the defendant on the note dated December 7, 1923, for the principal and interest then appearing due thereon. Said judgment was by the court of common pleas set aside and suspended upon motion of the defendant, and leave was given the defendant to file its answer in the case. In its answer the defendant avers that the note dated December 7, 1923, upon which this suit is based, was executed and delivered to the plaintiff as a duplicate for the note dated December -4, 1923, upon the request of the plaintiff, and after he had represented to the defendant that the note dated December 4, 1923, had been lost, and that, by reason of the fact that the note dated December 4, 1923, was not lost, but was discounted by the plaintiff and paid by the defendant at'the Dennison National Bank, the note herein sued upon is void and of no effect. To this answer the plaintiff filed his reply, denying that the note dated December 7th was issued as a duplicate of the note of December 4th. Upon the issues thus joined, the case was tried in the court of common pleas, and submitted to a jury, which resulted in a verdict for the defendant.

The plaintiff in his petition in error claims the following alleged errors occurring during the trial of the cause in the court of common pleas: (1) Admission of testimony and Exhibit 3 on behalf of the defendant; (2) misconduct of the jury; (3) that the verdict is not sustained by sufficient evidence; (4) errors of law occurring at the trial and excepted to by the plaintiff; (5) other errors apparent on the face of the record.

We have read all of the testimony offered in the trial, and have examined and analyzed the questioned Exhibit No. 3, which reads:

“Dennison, Ohio, March 30, 1926.

“Statement of Margaret Feeney.

“I, Margaret Feeney, recall that in December, 1923, S. B. Boyce, Treas. of the Dennison Lumber Company issued to S. P. Dunlap a note for $2,000.00 in payment of money due him on company houses No. 1 and No. 2 which he was building under contract. I also recall that two or three days later Mr. Dunlap reported to Mr. Boyce that he had lost or misplaced the note given him and Mr. Boyce issued another note for the same amount to take the place of the one that was lost. This is a true statement and I remember the transaction well.

“ [Signed]

Margaret Feeney.

“Witness: S. B. Boyce.”

At the trial the court admitted in evidence said Exhibit 3, to which the plaintiff at the time objected. The objections were overruled, to which exceptions were noted. In admitting the exhibit, the trial judge said to the jury:

“I will admit Exhibit No. 3 for this purpose only. The jury will remember that this witness, Margaret Feeney, was cross-examined as to conversations recently with Mr. Limbach and Mr. Fisher and Mr. Boyce, and it is admitted for the purpose only of the jury considering whether or not the statement made by her at this time, March 30, 1926, in writing, is any different from what her statement was today in this respect. In other words, was her statement today on her cross-examination any different, from what her statement was at the time this statement was purported to have been given, to-wit: March 30, 1926. That is the only purpose for you to consider it. Not as evidence in the case, but as reflecting on whether or not her testimony today is any different from what it was at that time, and for that purpose as reflecting upon the credibility of her testimony, if you find there is any difference. ”

It must be remembered that the one issuable and disputed question of fact, which is in controversy in this lawsuit and is determinative of the case, is: Was or was not the note in suit given in lieu of the first note which was paid by the defendant?

We are unanimous in our conclusion that the trial judge committed prejudicial error in admitting the evidence Exhibit 3. Yet, the real mischief was in the court’s statement to the jury as to the purpose of admitting said exhibit, and as to the extent to which it might consider it.

The contents of the exhibit were in the nature of a self-serving statement on behalf of the witness Feeney, which was not made under oath. It will be conceded that her deposition, under the circumstances, would not have been admissible as evidence. Then under what reasonable rule pertaining to the admission of evidence in a trial is the consistent statement of the witness Feeney, made long prior to her testimony at the trial, and which is the same as her oral testimony, competent to go to or be considered by the jury?

Yet this written statement, not made under oath, and with no opportunity given those of adverse interest to cross-examine or interrogate the author of same, is permitted to go to the jury, and be read and considered by it in the jury room. And the trial judge said to the jury it was admitted for the purpose of determining whether or not her statement made on the witness stand was different from that' made in the written document some months before, not as evidence, but as reflecting on whether or not her testimony given orally was different from that contained in the writing, and for the purpose of reflecting upon her testimony, if you find any difference. The legal effect of this instruction was that, if the jury found both statements the same, then and in that event she was a truthful witness.

Under the record in the present case we are fully convinced that, for the errors herein pointed out and the reasons given for same, the judgment of the lower court should be reversed and the cause remanded.

Judgment reversed and cause remanded for new trial.

Shields and Lemert, JJ., concur.  