Bates v. Leclair

49 Vt. 229 | Vt. | 1877

The opinion of the court was delivered by

Ross, J.

I. The declaration counts upon a note payable six-months from the date thereof. The plaintiff’s own testimony tended to show that the note was payable on or before six months from its date. The defendant insisted in the County Court, that if this testimony was believed, there was a legal variance between the note proved and the declaration. It is well settled that in an action upon a contract, the contract must be proved as laid. Mann and Wheeler v. Burchard and Page, 40 Vt. 326. The declaration need not contain the words of the contract — it is sufficient if it set forth the substance and legal effect of the contract, with precision, certainty, and clearness. In a note payable on or before six months from its dale, the maker does not promise to pay until the six months have elapsed. His promise is to pay at the end of six months. He reserves the right, if he so elect, to pay at any time during the six months, but the payee cannot legally enforce payment until the end of the six months. The declaration correctly describes the time when the maker promised to pay the note, but omits to state that he could have paid it sooner if he had so elected. After the six months had passed,, the right of election, reserved to the maker, was gone, and it then remained a note payable in six months from its date. The declaration sets forth the substance and legal effect of the note as it was at the time the suit was brought, and all that was necessary to show a cause of action in the plaintiff. We think this was sufficient, and that there was no such legal variance between the declaration and the proof as would defeat the plaintiff’s right of recovery. It was a variance in an immaterial matter which did not touch the plaintiff’s right of action, and which need not be stated for the legal identification of the note as the cause of action declared on, if future litigation should arise between the parties in regard to it. Passumpsic Bank v. Ross, 31 Vt. 315; Mooton v. Tenney, 16 Ill. 494 ; Hoover v. Johnston, 6 Blackf. (Ind.) 473 ; Templeton v. Bascom, 33 Vt. 132.

In this view of the case, the determination of whether the plaintiff could recover under the common counts in assumpsit, becomes immaterial.

II. It is not claimed that the County Court did not, in the charge to the jury, correctly state the law appertaining to estoppel, but it is claimed that the testimony did not tend to establish all the points necessary to be established, to make out an estoppel, and hence, that the action of the County Court was erroneous. The only testimony on the subject was that of L. M. Bates. He testified that he was interested in the note with the plaintiff, and, having heard rumors unfavorable to the solvency of Ed. C. Leclair, the other signer of the note, he called at the store with the note, and found the defendant there. Stepping up to him with the note in his hand, he said, “ Mr. Leclair, I hold a little note against you, and as you signed it for surety, and it is past due, I thought I would let you know.” He said, “ I never signed a note to you.” Bates then told him the note was running to his son. Leclair then said, “ That is all right,” reached down and slapped it, looked at his name, and said, “ That is all right.” Now it is urged that Bates did not inform the defendant that his action would be influenced by the defendant’s admission or denial of his signature to the note. The kind and manner of the inquiry were enough to put a man of ordinary prudence on his guard in that respect, and plainly to indicate to him that Bates’s action would be influenced by his answer. So, too, it is claimed that Bates did not testify what he should have done if the defendant had denied that he executed the note. But'there is a violent presumption that if he had denied its execution, having heard rumors unfavorable to' the solvency of the other signer, he would not have rested easy and failed to take any steps for the collection of the note. The language of a witness is to be reasonably considered, and to be weighed, having in mind the known laws and motives which ordinarily govern human conduct. When thus considered and weighed, we think the testimony of L. M. Bates tended to establish all that was necessary to work an estoppel upon a denial of the execution of the note by the defendant. Having this tendency, it was the duty of the County Court to submit the question of estoppel to the jury, with proper instructions.

Judgment affirmed.