Brewin v. Estate of Farrell

39 Vt. 206 | Vt. | 1867

The opinion of the court was delivered by

BARRETT, J.

The evidence tended very strongly to show that Farrell bought cf his sister, Mrs. Brewin, the three cows and one horse, for which she claims pay in this suit, and there was nothing in the case tending to show that he was ever indebted to her for anything except said cows and horse.

The questions arise under the general issue, and the plea of the statute of limitations. No question was made in the argument as to the charge touching the general issue.

In respect to the statute of limitations the court charged that the jury must find a distinct, unqualified acknowledgment, unaccompanied with any unwillingness on the part of Farrell to pay the plaintiff for this property, within six years prior to the death of said Farrell, and prior to the 1st day of August, 1863.

The proposition of law embodied in this instruction was, in substance, announced by Judge Royce in delivering the opinion of the court in Phelps v. Stuart & Wood, 12 Vt. 264, and it has been recognized and adopted as a formulary, expressing the true principle and rule, ever since. The efficacy of such acknowledgment rests in the fact, that, from such acknowledgment arises the implication of a promise to pay. If such implication is rebutted by anything accompanying the acknowledgment, of course it could not prevail. And this is the idea developed by Judge Bennett in Blake and Hart v. Parleman, 13 Vt. 574.

As the evidence tended directly and forcibly to show that Farrell made such acknowledgment, without any qualification, the court was warranted in putting the proposition to the jury in the manner stated in the exceptions.

But it is claimed that the court erred in the instruction given, bearing on the point, whether the acknowledgment testified to meant this particular claim.

The evidence tended to show, and did show, so far as concurring testimony coming from several witnesses, with nothing to the contrary, could show, that Farrell was indebted for this particular property at the time he made said acknowledgments, and there was nothing in the case tending to show that he ever owed her for any thing else. The testimony did not show that, when he made the acknowledgment, he stated for what he was owing her. But it did tend to show that, in one instance of acknowledging that he was owing her, he wanted to borrow money to pay to her, about the sum which it was shown by other evidence he was to give her for the property in question. Upon this state of the evidence, it would seem not to require the learning or judicial logic of a judge to see that it would be a fair inference of fact, that such acknowledgment referred to his indebtedness for said property. It would seem to be an irresistible inference of fact that any sensible man could not avoid making, and that a jury would make whether the judge told them so or not. It is the province of the court to instruct the jury as to what inferences of fact they would be warranted in' drawing from the evidence and facts proved; and, if the court should not err as to the kind and extent of such inferences, exception could not be sustained, even though the matter should be so plain as to render it needless to say any thing about it to the jury.

Evidence was given tending to show an acknowledgment, by Farrell, after the 1st of August, 1863, that he was owing his sister. It is objected that the court erred in permitting the jury to consider that evidence for any purpose ; and this, on the ground that the evidence was not proper under the plea of the statute of limitations. The court told them it was not proper to be considered for the purpose of showing a new promise to avoid the operation of the statute, but at the same time instructed them that it was legitimate evidence to be considered in connection with the other evidence in the case as tending to show an original liability on the part of said Farrell to the plaintiffs.

The plaintiffs, in order to make out their right to recover, had two things to prove, viz : 1st, the original debt unpaid. 2d, the new promise. If only the first point had been in issue, it would be conceded that the evidence was pertinent and proper. If the new promise made since the first of August, 1863, might be proved by parol, then it would have been pertinent and proper upon both points. But as a new promise by parol cannot, under the provisions of the General Statutes, operate to relieve a debt from the statute of limitations, it -was not admissible upon that point, and the court so told the jury. No case or book has been cited to sustain the objection, and we know of none that could be. It seems difficult to assign a valid or plausible reason in the law, why a party should be deprived of important evidence, legitimate in its application to a material issue, because there is another material issue in the case to which it would be impertinent and improper. In such a conjunction the course is that which was taken by the court, to tell the jury the legitimate application and use to be made by them of the evidence. If the court had failed so to do, or had told them wrong in this respect, it would have been cause for exception.

The judgment is affirmed.