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WILLETT V. FISTER, 85 U. S. 91 (1873)

U.S. Supreme Court

Willett v. Fister, 85 U.S. 18 Wall. 91 91 (1873)

Willett v. Fister

85 U.S. (18 Wall.) 91


The testimony of a wife and daughter, undertaking to swear from mere memory after a lapse of several years as to the exact year (as ex. gr., whether 1865 or 1866) when they saw a particular paper, discredited, there being circumstances leading to the inference that they were mistaken as to the year, and the purpose of the suit which their testimony was brought to sustain being to disturb, in favor of the husband and father, after a lapse of nearly five years, and after the death of one of the opposite parties to it, a settlement apparently fair.

John Fister, a butcher, had a stall in market where he sold pork. He bought his hogs of V. Willett and W. E. Clark, trading as V. Willett & Co., and there was a pass book held by Fister in which the debits and credits were entered of the transactions between the parties; the original entries being made on the commercial books of Willett & Co. On Fister's pass book, under date of 21st November, 1965, was the following entry:

"By cash, on 30th of October, $1500."

And on Willett & Co.'s books:

"1865, October 30th, by cash, for proceeds of stall, $1,500."

The account on the pass book, as well as the account on Willett & Co.'s books, were all closed on December 14, 1865, by "a note, at four months from this date, for $1,726.69."

The pass book and the defendant's commercial books were all in the handwriting of Willett, who died in 1869.

On the 15th of June, 1866, Fister confessed to V. Willett & Co. a judgment for $6,226, the amount of several notes

Page 85 U. S. 92

which he had given for balances due from him in running account; and subsequently conveyed several lots of ground, the proceeds of which on sale of them were to be applied towards payment of the judgment.

In this state of things, on the 15th of December, 1870, Willett being now dead, Fister filed a bill in the court below against his executors and Clark, praying that the judgment which he had confessed might be set aside, the ground of the bill being, as was alleged, that he, Fister, was an ignorant man, scarcely able to write his name, and had been induced to give the judgment for $6,226 not observing that Willett & Co. had not credited him with a payment of $1,500 made some months before the confession of it, for which payment he, Fister, had then and still had a receipt. The receipt was without date, and in these words:

"Received of John Fister, fifteen hundred dollars on account, which is not on his book, owing to his not having it along today."


It did not appear that any other receipt than this, excepting one for $800, signed by Clark, and dated October 20, 1863, had ever passed between the parties. The pass book and Willett & Co.'s books were apparently the only records.

The answer, both by the defendant Clark and the executors of Willett, gave full details of the transactions between Fister and V. Willett & Co.; averred that Fister made but one payment to them of $1,500; denied that he had a receipt for $1,500 for which he had not already received credit; averred that the judgment was properly entered for the amount due and no more,

"and that all the credits to which the plaintiff was entitled were allowed him; and that he at that time well understood the same, and was perfectly satisfied with the said settlement."

The only question in the case was one of fact: did the receipt without date refer to the transaction of 30th October, 1865, or to another amount of $1,500 which Fister alleged had been paid in April, 1865?

The case being at issue, Adeline Fister, wife of the complainant,

Page 85 U. S. 93

was examined; this examination being on the 5th of February, 1871, and the defendants objecting to her testimony as not competent under the acts of Congress in virtue of which it was offered. * Mrs. Fister said:

"I attended to the principal part of my husband's business in market; received and paid out the money for him; I was in fact the banker of my husband. I got the receipt in April, 1865; I know it was then because I was cleaning some shad and wanted some change, and I went up to where my husband's jacket was hanging on the sideboard, and run one of my hands down one of his pockets to see if there was any money in it; I pulled out this paper; I then called in my daughter, Maria, and she read it. . . . After she read it, I carelessly threw it in the drawer and didn't think anything more about it for some time; I looked at it again afterwards, and put it in an old book which Mr. Willett had laid aside, and not take it out again until a year subsequent; I never showed the receipt to my husband; he never saw it; I did not think it was anything of any account; I merely laid it aside; I did not know exactly what it was for; I did not call my husband's attention to it when he went to make the settlement with Willett, for I did not know of a settlement till he came back; I did not call his attention to it when he came back; I found it in 1865; Mr. Willett died in 1869; I cannot say for what that receipt was given; it might have been given for the $1,500, or it might not, that I sent my husband with; I can only swear as to the time I got the receipt. . . . I had often sent Mr. Willett a roll of money of $1,500 or $2,000 at a time; the way he did not have it on the books is this: this $1,500 or $2,000 was in payment, perhaps, of two or three lots of hogs, and I got credit on the books for each lot of hogs separately."

"Question. Did you ever pay him as much as $2,000 in one day?"

"Answer. I don't know as I paid him $2,000, but I know I paid him $1,700 in one day, and I paid large amounts at other times; I remember that in January or February, 1865, I sent him $1,500; my husband was going down, and having worried me a great deal about the book, not being able to find it, I said, 'I wish to

Page 85 U. S. 94

heaven you and Mr. Willett would settle your business together and not trouble me.' I wrapped up one roll of $600 with red string, and I took a piece of flannel and tied up another bundle of $900 with it; he put the $600 into his side pocket and the other bundle of $900 into his pantaloons pocket."

Mrs. Maria Clements, daughter of the complainant, was also examined. She said:

"One day my mother called me to her and said she had a receipt there that she could not understand; it had Willett's name on it; I read it, she holding it; I told her it was a receipt for $1,500, with no day and date; that was in the month of April, 1865; after I read it, I gave it back to her and told her to take care of it; I know it was in April, 1865, because she asked me to remember, and I did; I also mentioned the day, but I have now forgotten that."

"Question. What makes you recollect it was April, 1865?"

"Answer. When I said, 'There is no day and date,' she said, 'This is the way your father has been doing business; he takes a receipt without day or date; now we will remember this;' that is what makes me recollect it was in April, 1865 -- my telling her it was in April, 1865; that impressed it on my memory; it could not have been in 1866."

"Question. Have you had any conversation with her about it since April, 1865, until today?"

"Answer. We have often talked it over, but I could not state how often; I know nothing further touching the matter in controversy."

Fister's pass book contained entries thus:

"John Fister in account with V. Willett & Co."


January 5. By cash, $402.13; 12, cash, $219.12 . . . . $621.25

12. By cash, 349.00; 20, cash, 371.51 . . . . . 720.51

20. By cash, 403.50; 29, do., 249.85. . . . . . 653.35

29. By cash, 525.15; 7 February, do., $90.22. . 615.37

February 7. By cash, 809.78; 14 February, do., 116. . . 925.78

14. By cash, 519.10; 21 February, do., 369.52 . 888.62

21. By cash, 325.52; 28 February, do., 516.09 . 841.61

28. By note at 6 months, for. . . . . . . . . . 1000.00

28. By cash, $44. . . . . . . . . . . . . . . . 44.00

28. By note at 6 months, for. . . . . . . . . . 1000.00

28. By amount over. . . . . . . . . . . . . . . 120.19

Page 85 U. S. 95

The pass book showed that, taking the various sums total of cash paid by Fister, from January to November, 1865, the addition of $1,500 to the amount paid in anyone month would make a much larger sum than was ever paid in any other month. For example, the cash receipts were:

January, 1865 . . . . . . . . . $2,610.48

February, . . . . . . . . . . . 2,655.91

March . . . . . . . . . . . . . 2,771.12

April . . . . . . . . . . . . . 2,327.00

May . . . . . . . . . . . . . . 2,501.00

June. . . . . . . . . . . . . . 2,520.00

July. . . . . . . . . . . . . . 2,183.00

August. . . . . . . . . . . . . 2,408.00

September . . . . . . . . . . . 1,984.00

October . . . . . . . . . . . . 2,696.00

November. . . . . . . . . . . . 1,989.30

Clark, one of the defendants, was also examined, and he testified that in his presence, in the autumn of 1865, Fister paid Willett $1,500, saying that he had not his pass book with him; that Willett gave him a receipt; that so far as the witness knew, Fister had never paid any other sum of $1,500 afterwards; that Fister, in confessing the judgment to secure the notes which he had given, said "that he thought he had done right, as he owed the debt and could not pay the money and wanted to secure it," and that he had never made to the witness any complaint that the judgment had been confessed for too much.

The court below sustained the claim of the complainant to the two credits and the defendants appealed.

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