Hinton v. Welch

RICHARDS, J., pro tem.

This is an appeal prosecuted by the plaintiff from a judgment in the defendant’s favor. The action was one instituted by the plaintiff against the estate of her deceased brother, Charles J. Welch, to have it decreed that the former was entitled to one-half of the property of said estate as the surviving partner of said deceased. Upon the trial of the cause the court made its findings to the effect that no agreement of partnership was ever entered into between the plaintiff and the deceased, that no such partnership ever existed; that no partnership business, was ever conducted by them; that the property described in the complaint was never the property of any such partnership, and that plaintiff had no interest therein. The court further found that if any such partnership had ever existed, a full settlement thereof had been had in April, 1910. It further found that the deceased had repudiated any such alleged partnership relation in May, 1910, and that the plaintiff then had notice of such repudiation and, based upon this finding, the court further found that the plaintiff was guilty of laches in the prosecution of her said claim and of the present action, and that her alleged cause of action was barred by the provisions of section 343 of the Code of Civil Procedure. Judgment accordingly went for the defendant, from which judgment, after a motion for a new trial had been denied, this appeal was taken.

. The appellant’s first and main contention is that the evidence was insufficient to justify the finding of the court to the effect that a partnership had never existed between the appellant and Charles J. Welch, her deceased brother. The evidence in the case is quite voluminous, covering a period of about thirty years, during the latter half of which the partnership, according to the plaintiff’s contention, was in existence. No useful purpose would be subserved by a review in detail of this evidence, but this court, after a careful examination of the record embracing the same, is satisfied that a substantial conflict is presented as to whether or not such partnership was formed or existed at any time during

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said period or at all. The trial court resolved this conflict in favor of the defendant’s contention that no such partnership had ever existed, and its finding in that regard will not therefore he disturbed upon appeal.

The further finding of the court to the effect that such partnership, if it ever existed, was repudiated by Charles J. Welch in the month of May, 1910, would be immaterial in view of its first above finding that such partnership did never in fact exist except as the same may have a bearing upon certain errors of law which the appellant insists were committed by the court during the trial of the cause and which have relation to the court’s conclusion that the plaintiff was guilty of laches in the presentation of her said claim and in her prosecution of this action, and that said action is barred by the statute of limitations. These errors of law were alleged to have been committed in the admission in evidence of certain letters of the deceased to the plaintiff and also in the admission of certain letters of the plaintiff herself. As to the first of these the record discloses the following to be the facts: The plaintiff, while upon the witness-stand in her own behalf, but while undergoing cross-examination, was asked this question, “You received, did you not, Mrs. Hinton, all of the money which you were entitled to from the estate of your father?” The plaintiff answered this question at some length, in the course of which she volunteered the statement that she had written a letter to her brother requesting a statement as to her half interest in the ranch to which she had received a reply. The defendant produced her said letter and offered it in evidence and thereupon offered in evidence the decedent’s letter in reply. To the admission of this latter letter the plaintiff objected upon the ground that it was inadmissible as a self-serving declaration. We are inclined to the opinion that this objection was not well taken, for while we think it is true that a party may not, under the provisions of section 1854 of the Code of Civil Procedure, offer a letter of an opposing party for the mere purpose of laying the foundation for the admission of an answer to it containing self-serving declarations on the part of the writer of such reply, yet when, as in this case, the plaintiff has volunteered to state in part the subject matter of a correspondence between the