M'Clenachan v. M'Carty, 2 Dall. 45 (C. P. Phila. Cty. 1790)

Common Pleas of Philadelphia.

August Sittings, 1790.

M'Clenachan, et al. versus M'Carty.

The Plaintiffs, in the course of a mercantile correspondence, offered to read in evidence a letter written by them to Capt. Lesson, who was commander of the vessel, about which the controversy had arisen.

But it was opposed by the defendant's counsel; who urged, that it was a letter to a third person, not the agent of the defendant, nor connected with him; that the defendant had never heard of such a letter before, nor had he in any-wise enjoyed the opportunity of contradicting its contents; that although it was true, that in investigation of commercial business, a greater latitude of evidence was admitted than in other cases, yet that this was a transaction between merchants resident here, which was susceptible of the regular proof; and that if the rules of evidence were, under such circumstances, to be waved, it would in effect capacitate every one to make evidence for himself.

The adverse counsel contended, however, that in mercantile transactions, the correspondence which has passed between the parties interested, or with persons who have had an agency in the business, has always been deemed god evidence; that the letter now offered was not written ex post facto, but is of an old date, antecedent to the existence of any controversy; that where no controversy is in contemplation, the declarations of a party, made at the time, are evidence; and that similar letters had already been introduced into the cause.

Shippen, President:—The Defendant has himself given in evidence a letter which he wrong to Capt. Lesson: Besides, it is certainly common in mercantile disputes, to lay before the jury the instructions, which are given to captains of vessels. The court think, therefore, that the objection to reading the letter must be over-ruled.

Last modified: February 20, 2016