50 Vt. 94 | Vt. | 1877
The opinion of the court was delivered by
This is an action of assumpsit, whereby the plaintiff seeks to recover upon an alleged promise by the defendant to pay him, the plaintiff, the sum of $73 for a certain mare, upon which the plaintiff had a lien for that sum, reserved by virtue of a conditional sale of the mare by him to one Demás.
The defendant, prior to the alleged promise, had exchanged another horse with Demás for the mare in question, and while the mare was in the custody of one Gray, where the defendant had placed her, the plaintiff took her into his possession, but subsequently let her go back into the possession of the defendant, as he, the plaintiff, claimed, in consideration of the alleged promise. The defendant denied making such promise, and claimed that the plaintiff gave Demás permission to trade off the mare, and, when he took her, it was under the arrangement that if the plaintiff thereafter became satisfied, his, plaintiff’s, claim on the mare was good, he, the plaintiff, should take her from the defendant, and the latter would have the title to the mare settled by suit.
Both parties offered evidence tending to prove their respective claims as above stated. The defendant also offered evidence to show that the value of the mare at the time of the alleged promise was less than $73.00 ; but this evidence was excluded by the court upon the objection of the plaintiff, and to its exclusion the defendant excepted.
Was this evidence properly excluded ? We think not. It tended to show that it was, at least, improbable that the defendant should have made the alleged promise, and was, therefore,
Says Best: “Most important inferences are drawn from the ordinary conduct of mankind, and the natural feelings and impulses of human nature. Thus, no man will ever be presumed to throw away his property, as for instance, by paying money not due.” In the absence of proof, the presumption would be that each party intended to make an equal bargain ; but the evidence as to the value of the mare, offered, tended to show that the alleged bargain was unequal; and as such bargain was testified to by the plaintiff, and denied by the defendant as a witness, the latter was entitled to have the fact, that the value of the mare at the time of the alleged promise was less than the amount that the plaintiff claimed the defendant agreed to pay for her, go to the jury, to strengthen his testimony. And the greater the difference between the value of the mare and $73.00, the more weight this evidence would have; but what weight should be given to it, is for the jury to determine.
The court below instructed the jury that “the whole case turned upon how they settled the question, whether a license was given to Demás to trade off the mare ”; and they were also instructed, if they found such license was given, that their verdict should be for the defendant, leaving the inference that if the jury failed to find such license, their verdict should be for the plaintiff. This we think was error. To entitle the plaintiff to recover, the jury should find that the alleged promise -was. made by the defendant, and they should have been so instructed. The mare was taken by the defendant from the plaintiff under such circumstances that no promise can be implied on the part of the defendant to pay for her or to pay the plaintiff’s lien upon her.
Judgment reversed, and case remanded.
