Opinion
4-4-1956
S. A. PONCE, Plaintiff and Respondent v. Ethel Ruth MARR, Defendant and Appellant.* Civ. 16726.
John J. Fahey, Jr., Daly City, for appellant. William A. Finger, Burlingame, for respondent.
S. A. PONCE, Plaintiff and Respondent
v.
Ethel Ruth MARR, Defendant and Appellant.*
John J. Fahey, Jr., Daly City, for appellant.
William A. Finger, Burlingame, for respondent.
DEVINE, Justice pro tem.
Plaintiff, as administrator of the estate of his deceased father, brought a suit to cancel a deed which his father had delivered to defendant. It is the contention of plaintiff that the deed was given in consideration of an oral promise by defendant that she would care for and nurse the elderly grantor and that defendant at the time of said promise did not intend to perform. Defendant denied she had made any such agreement, claiming that the deed was for prior services of some four years' duration in collecting rents, doing office work, showing properties, and driving decedent around for which, she testified, she had not been paid. She testified that she had been lent money by decedent to buy an ice cream parlor, but that she had repaid the loan. The court found true all of the substantial allegations of the complaint and rendered judgment canceling the deed.
There were several direct conflicts in the testimony of the witnesses, and at the end of the first day of the trial, both sides having concluded the presentation of evidence, the court called on counsel to put their views in writing and the cause was ordered submitted.
Several days later the court set aside the submission for the purpose of considering the subject of evidence discovered by plaintiff's counsel in the interim. At the reopened trial plaintiff offered in evidence several checks, in a total amount exceeding $1,500, which had been drawn by decedent payable to defendant, and endorsed by her. These were offered by way of impeachment of defendant's testimony that she had not received compensation from the decedent. There was no objection by defendant to the admissibility of these checks. Appellant's position is not that the checks were improperly admitted, but that her explanation of them was not received.
That the subject of these checks was extremely important cannot be gainsaid. Up to this point, the court had reserved judgment and had asked counsel's assistance by requesting their respective views to be set forth in writing. At the conclusion of the brief second part of the trial, the court's decision was positive and swift. The court remarked that 'She said she didn't get any money and there is fifteen hundred dollars.' Within a few moments and after an explanation of the checks was denied by the court, as appears below, judgment for plaintiff was ordered. Thus, the matter of the checks must be regarded as of large import, and the claim that the explanation was curtailed touches the substance of the cause.
Respondent argues that even if the court had admitted the explanation of the checks, and the court believed the explanation, it still would not have been a defense to the action. 'Except for the question of * * * credibility,' to quote respondent's brief, it made no difference, and later in that brief, it is stated: 'if the court didn't believe her testimony that the checks were loans, it could well disbelieve her bare and uncorroborated testimony that she never promised to care for Ponce.' That, indeed, is the point. In a case wherein defendant was her own chief witness and wherein her credibility was crucial to her defense, her explanation of evidence that was admitted by way of impeachment was of critical importance.
After the checks were admitted in evidence, counsel for defendant asked his client as witness to go through the checks and give any explanation she wished. It is to be observed that in her original testimony, defendant had not denied receiving any moneys from decedent, for she had testified to one loan and had not been asked about others, so that there was nothing essentially contradictory in her testimony, and the whole matter was one which called for thorough inquiry. She had, it is true, denied receiving compensation for her work. Taking one check, in amount $200, defendant testified that it was a loan to build a room onto the home of defendant and her husband (not the house deeded herein) and that the loan was paid back. She said 'I think there should be a cancelled note.'
At this point, respondent's counsel moved that the testimony be stricken on the ground that it was not the best evidence. The court granted the motion and also stated that the court did not believe the testimony.
There followed an attempt by defendant's counsel to go into an explanation of the other checks, and refusal by the court to allow any further testimony by way of explanation. Judgment for plaintiff was directed in a decision from the bench.
It is not clear whether or not the court rejected the evidence as to the check transactions on the ground that it violated the best evidence rule, or that the court found it, so far as it went, unworthy of belief and decided to hear no more on the same subject.
The parol explanation that the first check was a loan did not violate the best evidence rule, and if a similar explanation had been given about the other checks, there would have been no breach of that rule. The reason is that there was no attempt to show by parol the terms of a written instrument. Defendant was attempting to testify as to a claimed fact, namely, repayment of the sums, and she cannot be foreclosed from doing so by the circumstance that a written instrument which was not produced also might show, and perhaps more satisfactorily show, the fact to be as asserted. The best evidence rule does not apply to such proof. The existence of the writing was collateral to the issue of repayment.
Wigmore on Evidence, Third Edition, volume IV, section 1254, states the proposition: 'For example, in proving that a defendant paid money upon a note, the payment of the money is an act separate from and not involving the terms of the document, so that to prove the payment is not to prove the document's contents, and therefore the rule of production does not apply * * *'
An excellent explanation of the distinction between an attempt to show the terms of an instrument by secondary evidence, which attempt properly would be denied under the best evidence rule, and the producing of oral evidence although written evidence also exists, is given in the case of Altramano v. Swan, Cal.App., 119 P.2d 401. That case does not appear in the California Appellate Reports because the supreme court granted a hearing. Altramano v. Swan, 20 Cal.2d 622, 128 P.2d 353. The supreme court came to the same conclusion as the district court of appeal as to the disposition of the cause, but did not mention the point of evidence; however, since the cause was remanded for further trial and since the district court of appeal had made its ruling on the point of evidence specifically for the guidance of the trial court at the new trial, and the supreme court did not interfere with that ruling, the ruling may be regarded as authoritative.
In that case, a witness sought to testify to deposits she had made in a bank, and it was held on the appeal that she was not foreclosed from doing so by the fact that deposits were shown on the books of the bank, so that claimed deposits might be proved or disproved from such books. See, also, Marriner v. Dennison, 78 Cal. 202, 213, 20 P. 386; People v. Skeen, 93 Cal.App.2d 489, 491, 209 P.2d 132.
On the other hand, if the court in the case before us excluded evidence relating to the other checks, not upon the ground of the best evidence rule, but because the court had found the explanation of the first check inadequate, or even incredible, there was error in doing so. The court surely had the right to disbelieve the witness and, after hearing the entire case, to reject all of her testimony if there was wilful falsehood in part of it; but this does not mean that the witness could be halted in the progress of her testimony. The witness' explanation of other items might have been satisfactory to the court, and might have strengthened her explanation of the first check, so that the court's mind might be changed about that item, either by hearing more about that item or simply by the quality of the testimony that was to come. What the course of the trial would have been we cannot tell; but defendant was entitled to a complete hearing, and to produce all relevant, competent and material evidence on any material issue. Bole v. Bole, 76 Cal.App.2d 344, 172 P.2d 936; Foster v. Keating, 120 Cal.App.2d 435, 261 P.2d 529; Theatrical Enterprises, Inc., v. Ferron, 119 Cal.App. 671, 677, 7 P.2d 351.
Although a complete offer of proof was lacking, since the court made it plain that testimony offered in explanation of the checks would not be received, such offer of proof was rendered unnecessary. Lawless v. Calaway, 24 Cal.2d 81, 91, 147 P.2d 604.
The judgment is reversed.
DOOLING, Acting P. J., and KAUFMAN, J., concur. --------------- * Opinion vacated 301 P.2d 837.