Savings Bank v. Denker.

three years after the testimony was taken. This certificate recites the stipulation mentioned, the notice, that Bruere was sworn by the notary to testify, and that before his examination the notary "was excused from further attendance at the taking of the deposition by consent of both parties, and that the forgoing was presented to me by the stenographer who reduced the testimony of said witness to writing, as a correct statement of the questions propounded to and the answers given by him; that before the foregoing testimony was signed by said witness the said witness became sick, and the notary was unable to obtain his signature, and the said witness subsequently died without having signed said deposition."

When this document was offered in evidence the defendant objected to its admission, and the referee rejected it as a deposition, but received it in evidence as containing admissions made by an officer of the bank against the interests of the bank.

The appellants now claim that the deposition properly was received in evidence on that theory, but content themselves with the statement made by the referee of his reasons for admitting it on that ground, and cite two cases in support of that position: Roberts v. Railroad, 153 Mo. App. 1. c. 644; Malecek v. Tower Grove Railroad Co., 57 Mo. 1. c. 21.

The rule relating to the admission of the declarations of an agent is that in order to bind the principal the declaration must have been made during the continuance of the agency in regard to the transaction then depending. If the statements of the agent were not contemporaneous with the transaction and illustrative of its character, but merely a subsequent narrative of how it occurred, it is inadmissible. [Redmon v. Railroad, 185 Mo. 1. c. 12; McDermott v. Railroad, 73 Mo. 1. c. 518-19; Scovill v. Glasner, 79 Mo. 1. c. 455-6; Bangs Mllg. Co. v. Burns, 152 Mo. 1. c. 380-1.]

We do not understand that the cases cited by the referee in support of his position indicate a contrary rule. Each seems to turn upon the contruction of the

Savings Bank v. Denker.

facts in the particular case. In this case, the testimony of Bruere set out in the document offered as his deposition related to transactions which occurred years before. At the time his statement was taken he was not acting for his bank, although president and a director of it, nor transacting the particular business referred to in the statement, nor any business of the bank. On the contrary, his statement was taken under the constraint of process and at the instance of the defendants. It was therefore incompetent as an admission of the plaintiff bank and was erroneously admitted in evidence on that ground.

II. Appellants, however, contend that it was admissible as a deposition, that this court should consider it as a part of the record as a deposition, and that the theory upon which it was admitted is imDeposition. material.

Several objections are urged by respondent to the competency of this deposition, the principal one of which and the only one necessary to consider is that the deposition was incomplete and the plaintiff deprived of its right to cross-examine the witness.

The general rule is that where a party is deprived of the benefit of cross-examining a witness, by the act or neglect of the opposite party, or by the misconduct of the witness, the testimony of such witness cannot be read in evidence. [Sturm v. Atl. Mut. Ins. Co., 63 N. Y. 1. c. 87; Kissam v. Forrest, 25 Wend. 651; Forrest v. Kissam, 7 Hill, 463; Gallagher v. Gallagher, 87 N. Y. Supp. 343; Matthews v. Matthews, 6 N. Y. Supp. 589; Dannefelser v. Weigel, 27 Mo. 45, 1. c. 47; Celluloid Mfg. Co. v. Arlington Mfg. Co., 47 Fed. 4.] It is suggested in some of the books that rulings in some cases in chancery would conflict with this general principle of evidence, but this suggestion is qualified by the further statement that such cases depend upon their own peculiar circumstances.

The general rules of evidence in courts of law and courts of equity are the same, and there seems to be no

Savings Bank v. Denker.

reason under our code of procedure for applying different rules to the admissibility of testimony, considering this an equity case on account of it being a compulsory reference.

The appellants cite only two cases in support of their position. In the first of these, a chancery case, Scott v. McCann, Admr., 76 Md. 47, the opinion contains this statement (1. c. 51): "It seems to be admissible in equity cases to receive the testimony of a witness. whose cross-examination has been prevented, or cut off by death, where such cross-examination has not in any way been prevented by the fault of the party producing the witness, or of the witness himself."

The court then points out that a strong reason for receiving testimony in that particular case was because the plaintiff had already testified, and the defendant, after testifying in chief, died before his cross-examination. If his testimony in chief were not admitted the plaintiff would have an unfair advantage, unless the testimony of the plaintiff were stricken out in accordance with the purpose of the statute, which seeks to put parties upon an equality by excluding the testimony of the survivor, where one is dead. The court solved the matter by permitting the incomplete testimony of defendant to be introduced. The opinion distinctly says that the completion of the defendant's testimony was prevented by the act of God, so the defendant himself was in no way to blame for the failure to have his cross-examination taken.

The other case cited by appellant, Fuller v. Rice, 4 Gray, 343, is where it seems the testimony was substantially complete. The cross-examination was begun, but not finished, and the court held the deposition admissible.

In the case of Kissam v. Forrest, supra, it was held an incomplete deposition was inadmissible, but the case was appealed and reversed, and under the title of Forrest v. Kissam reported in 7 Hill, 463. In reversing it, after holding that the incomplete deposition was admissible, the court said: "I admit the rule should be

Savings Bank v. Denker.

otherwise where the right to cross-examine the witness has been lost by the fault or neglect of the party calling him."

In the case of Sturm v. Insurance Co., supra, the New York Court of Appeals announced the rule thus: "It may be taken as the rule, that where a party is deprived of the benefit of the cross-examination of a witness, by the act of the opposite party, or by the refusal to testify or other misconduct of the witness, or by any means, other than the act of God, the act of the party himself, or some cause to which he assented, that the testimony given on the examination in chief may not be read."

In the case of Gallagher v. Gallagher, supra, the witness on cross-examination refused to answer, and the court declined to compel him to answer. On appeal it was held the testimony of the witness should be stricken out. The court said (87 N. Y. Supp. 1. c. 344): "The defendant insists that he should not suffer because the court refused to compel his witness to answer, for he was willing that he should, and that the court should compel him to. But a party calling a witness is, in a sense, responsible for his conduct. If he has been examined in chief, and fails to return on an adjourned day for cross-examination, even though the party has endeavored to obtain his attendance, still he must suffer by the loss of his testimony."

In the case of Matthews v. Matthews, 6 N. Y. Supp. 589, the cross-examination of a witness was suspended on agreement between the parties that he should be present and recalled for further cross-examination. The witness failed to reappear when called, and it was held that his testimony should be stricken out.

The case of Dannefelser v. Weigel, 27 Mo. 45, is where the attorney for the plaintiff attended on the day and hour at the place appointed by defendant in the notice served for the taking of depositions. This attorney finding that he was obliged to leave for a little while on an errand for his sick wife requested the notary and the opposing counsel to proceed with the taking

Savings Bank v. Denker.

of the deposition, but to retain the witness for an hour that he might cross-examine her on his return. This the opposing counsel and the notary agreed to do. He went away, returned within an hour, and found that the witness had given her deposition and had gone. The plaintiff's attorney promised that he would have the witness at the office at a later hour. When she did not appear the promise was renewed for two successive days, but the witness still failed to appear and never was cross-examined. The court states that no blame was attached to plaintiff's counsel for the failure of the witness to appear, and that his promise to have her present was made in good faith, but his client was responsible for the movements of the witness, and, on account of his failure to produce her, a motion to suppress the deposition should have been sustained. We are unable to find any other Missouri case which discusses this precise point.

In the general rule, stated in the New York case cited above, where the act of God prevents the crossexamination of a witness, the testimony in chief is held to be admissible. If a witness is suddenly stricken with a fatal illness before he can be cross-examined, such that it is impossible for him to testify, it may be construed as an act of God which prevents the completion of the testimony.

Mr. Bruere did not die until in June, 1906, about three months after the deposition was begun. The stipulation states that his deposition was not completed on account of his sickness, but it nowhere appears that the defendants made any effort to continue the taking of the deposition, or that the illness of the witness was so serious that it could not have been finished at some time during that three months. It will be noticed that, according to the stipulation, the immediate adjournment of the taking of the deposition was not on account of the sickness of the witness, but at the request of the defendant and with the consent of the parties. It was not "completed;" the defendants had not finished their examination in chief. The stipulation does not say