55 Vt. 428 | Vt. | 1883
The opinion of the court was delivered by
The plaintiff took the note in suit long after the same fell due. He took it, therefore, subject to all the existing'defences to the note itself, or which grew out of the note transaction, or out of any agreement between the defendant and the payee, in relation to it. He could not plead in offset a matter which existed between him and the payee at the time of the transfer to the plaintiff. Walbridge v. Kibbee, 20 Vt. 543; Bowen v. Thrall, 28 Vt. 382.
The defendant was allowed against the plaintiff’s objection and exception to introduce evidence tending to show that prior to the transfer he had boarded the payee’s wife under such circumstances that there was an implied promise on the part of the ' payee to pay the defendant therefor. The exceptions give no details of what this evidence was. On the face of it, it would seem to be a matter of offset rather than one which grew out of the note transaction, or that was connected with it. The statement in the exceptions that the evidence tended to show an. implied promise from the payee negates the idea that there was in this testimony any evidence tending to establish an express promise from him to have the board of the wife applied on the note. An implied promise is one raised by the law from certain facts, and which the law enforces as though there was an express promise where, in fact, none exists. But there may have. been something in this evidence that tended to connect this phase of the defence with the note. This court will not presume there was not, in order to find error in the action of the County' Court in admittihg this testimony. There should have been a statement in the exceptions that there was no evidence tending to connect the payee’s implied obligation to pay the defendant for his wife’s board, with the note, or, the evidence thus admitted should have been, by a
II. The defendant’s testimony also tended to show that the payee of the note, while he owned and controlled it, especially agreed with the defendant that the support of his wife should be a payment upon the note. It is contended that the court erred in allowing the jury to consider anything but the direct testimony
III. The wife of the payee of the note was allowed to testify in the case, but not as to any matters that would be a breach of marital confidence. The case neither on its facts nor pleadings showed that her husband had any interest in the event of the suit. Unless he was thus interested she was a competent witness in the suit. As has been frequently held and announced, error must appear upon the face of the exceptions. Every reasonable intendment is to be made in favor of the judgment of the County Court. It is for errors that appear upon the exceptions, and not for errors that rest on the assertion of counsel, that judgments are reversed
Judgment affirmed.