Austin v. Bingham

31 Vt. 577 | Vt. | 1859

Eedeield, Ch. J.

I. It is objected to the trial, that Miller was permitted to state that Bingham had told him that the note was paid, soon after the the suit was commenced and before the silent judgment and review, as we suppose. As general evidence of the fact of payment, this was clearly incompetent. But as the court permitted the plaintiff to prove the fact of the defendant’s having once suffered the judgment and review, as tending to establish his theory of the defence, that it had been conceived altogether after that time, which is certainly very questionable evidence that the defendants' did not then consider that they had any defence to the note, we do not see any well founded objection to showing, on the part of the defendants, that the principal had informed the surety that the note was paid, and that, acting upon that information, the defendants both intended to make defence from the first. And the testimony seems to have been admitted for no other purpose, and we can only infer that this purpose was made known to the counsel and the jury at the time the testimony was admitted. If so, there was no need of alluding to it in the charge to the jury, unless some other use was attempted to be made of the evidence in the argument. And as no exception is taken to the charge on this point, we may, and must in law, presume it was satisfactory to the plaintiff, and that if the point had been again brought to the attention of the court in their charge, they would have repeated their former views.

This fact of Bingham having told Miller that he had paid the note, seems to have been communicated by Miller to the plaintiff, and probably enough, before the silent judgment and review, and if so, tends not only to show that the defendants, at that time, intended to make defence to the action, but that this was so understood by the plaintiff. We could not then regard the admission of this evidence, with the restriction under which it went to the jury, as error.

It is no doubt true that if improper evidence has been admitted on one side, either with or without objection, the court may still decline to hear evidence upon the other side in answer to it, and very likely it might be error to admit incompetent evidence generally, in the action, although it might have some tendency to rebut incompetent evidence already admitted. But if admitted for no other purpose, and allowed to have no other influence in the trial, we could not regard it as error.

II. The suggestion of the court to the jury, in regard to the view they might probably take of the evidence, or the mode in which it would probably affect their minds, is not unusual or objectionable, and is not regulated by any definite rules of law. We do not perceive, in the present case, that these suggestions were not'fairly justified by the evidence in the case.' The plaintiff had told Miller that the money, paid in fact by Bingham, was to apply, and had been applied, in another mode, and the jury . might possibly have believed this statement in regard to the fact of the application, and not been satisfied with his recollection or understanding of the directions given in regard to the application at the time the money was paid. And if there had been no direct evidence upon the point, the three points made by the judge in presenting the results of the evidence are so natural and obvious, as applicable to such a transaction, that we could not regard it as d charge to find facts without evidence. The fair inferences, from evidence founded upon the natural course of business and of human experience, are as much evidence as the principal facts from which the deductions flow. *

III. In regard to tlie offer of the plaintiff, if the jury were against him as to the fact of the payment by the defendant, to waive the small balance in his favor, and submit to a verdict for the defendant, we do not consider the court bound in law, to adopt it. Perhaps it might have been regarded as improper in them to have done so. The least which would entitle the plaintiff to such a result, was to treat so much of his claim as can-celled, and to put it in some shape where it could not be recovered at pleasure. If this had- been done, although upon trial and for the purpose of having his review, we don’t see how the defendant, under the decisions in this Sate, could have objected to it. And a verdict for that sum, thus discharged, at any subsequent term, would probably have been erroneous. But a mere offer, for the present trial, is not oüe which the court were bound in law to accept and act upon.

We think, therefore $ that the judgment upon the exceptions! must be affirmed.