Brown v. Munger

| Vt. | Jan 15, 1844

The opinion of the court was delivered by

Hebard, J.

The power of the court to order a nonsuit was fully considered in the case of Smith v. Crane, 12 Vt. 487" court="Vt." date_filed="1840-03-15" href="https://app.midpage.ai/document/smith-v-crane-6572361?utm_source=webapp" opinion_id="6572361">12 Vt. 487, and we are well satisfied with the reasoning and the result at which the court arrived in that case. When the plaintiff appears in court, unless he neglect to comply with some order or rule of' court, he is entitled to a trial, and to a judgment in the usual way ; and the court will not order him to become nonsuit against his will.

A motion for a continuance is addressed to the sound discretion of the court, to be granted, or relhsed, as the particular circumstances of the particular case shall dictate. And the granting, or refusing to grant, the continuance, is not an error which can be corrected by this court.

We are next to see whether the court erred in receiving the admissions of Munger, one of the defendants, he having received his discharge in bankruptcy, although made before he had received his discharge. The admissions of a party are never conclusive against him. When made apparently against his interest, they become testimony for the jury to weigh, and are more or less conclusive, as they are. more or less against his interest. Munger was still a party to the record, and his having his discharge in bankruptcy would avail him nothing, unless he pleaded it; and, being pleaded, the result is to be determined by the jury, for it was subject to be impeached for fraud, or whatever other imperfection it might possess; so that, at the time of making the admissions, the degree of interest, which the defendant Munger might have felt, is uncertain, and the jury must at last judge of it, and give effect and credit to his admissions accordingly. This certificate is but a defence to the action, and the defendant might have had some other defence, apparently as conclusive as this ; but, in that case, it would hardly be contended that his admissions would not be evidence. He was party to the suit, and his admissions were proper evidence to be received and weighed by the jury with reference to the time, manner, and occasion of making them.

There seems to have been some objection to the record of the other case being used as evidence in this suit, — but I see nothing in relation to those records, in the manner and purpose for which they were introduced, that is objectionable, or to which much importance could be attached. They were introduced in connection with the doings and sayings of Munger, to show upon what ground he defended the other suit, and what he, by such defence, admitted in relation to the present suit. So far as the record was concerned, it seemed to be regarded as explanatory of what he said, it being the subject matter of the conversation in connection with the note in suit.

Thus far the objections are taken to the ruling of the Court in the progress of the trial. There are also two objections to the charge of the court to be considered.

1. The Court told the jury “that, as the defendant in argument-relied upon the statement of the plaintiff’s counsel, they should take the whole of it, and effect should be given to it in that way, and not by taking-detached parts of iti” By the “statement of plaintiff’s counsel” we suppose is meant the admission of the plaintiff in relation to his holding two notes, and the manner and purpose for which they were given, as detailed in another part of the case; for otherwise I do not see what the jury had to do with the statements of counsel, unless to regard them as arguments, addressed in that sense to their understandings, and to operate upon their minds, as they should be found to be legitimately drawn from the evidence in the case. But if I am right in supposing that these statements, alluded to, are the admissions of the plaintiff through his counsel, then the rule, as laid down by the court, by which the jury were to consider them, commends itself to our approbation.

A party, through his counsel, may admit, upon the trial, any fact which the other party is bound to prove; and when he does so make an admission, and the other party chooses to rely upon it, he must take the admission as it is made, subject to all the qualifications and restrictions that attach to it. If the defendant, upon trial, state that he has received the plaintiff’s money, but has returned it, and the plaintiff choose to rely upon that as an admission, he must take the whole of it, — that which makes against, as well as that which makes for him. But the statement of counsel is never to be regarded as evidence of a fact, so as to supersede the necessity of proof, and bind the party, unless, upon the one hand, it was understandingly made for that purpose, and, upon the other side, was so received and relied upon; and then the admission becomes mutual, and, in the sense in which it was made, operates for the benefit of both parties, like any other fact in the case which has been established by evidence.

2. The other point in the charge of the court I regard of more importance, not only as affecting the right of recovery in this case, but as forming and establishing a rule of law and practice for other similar cases. The court charged the jury, “ that the indorsement of part payment upon the note in question was to be presumed to have been done by the privity and consent of the parties in interest, and that it furnished evidence tending to prove that the defendant had recognized the validity of the note now in suit.” If such an indorsement is to be regarded as evidence that the maker of a note has recognized its validity, all that the holder of a spurious note need to do, when attempting to enforce its collection, would be to acknowledge payment of part of the note by such indorsement upon the back. But I think that to hold thus would be establishing a very dangerous precedent.

There -has been much discussion in relation to the effect of an indorsement upon a note, or bond, when relied upon to rebut the presumption of payment. For this latter purpose, in the case of Searle v. Barrington, 2 Str. 826, the indorsement upon the bond was holden to have that effect in the Exchequer Chamber, although the Judges were divided in opinion. But the correctness of that decision has been very much doubted in England. And Mr. Starkie, in his treatise upon evidence, regards that decision as anomalous, and opposed to the fundamental rule that a man shall not make evidence for himself. In the case of Roseboom v. Billington, 17 Johns. 182" court="N.Y. Sup. Ct." date_filed="1819-10-15" href="https://app.midpage.ai/document/roseboom-v-billington-5474235?utm_source=webapp" opinion_id="5474235">17 Johns. 182, it was held that an indorsement on a bond, or note, made without the privity of the debtor, could .not be admitted as evidence of payment in favor of the party making such indorsement, unless it were shown that it was made at a time when .its operation would be against the interest of the party making it. And it is said in the present case, that the inference to be drawn from the indorsement is in favor of the validity of the note, because it was against the interest of the plaintiff thus to acknowledge the payment. But this is a two edged argument, that cuts equally as well one way as the other; for, if we assume the fact that the note was invalid, the plaintiff, by thus indorsing, is enabled to make evidence for himself, and thus purge the note of its imperfections. And it would seem to make no difference what the objection to the note might be; by the application of this principle all might be met by proof of an indorsement upon the note.

It is sufficient to say that the indorsement upon this note, of itself, without proof of payment, had no tendency to prove that the defendants had recognized the validity of the note, and the charge of the court, in this respect, is erroneous.

Judgment of the county court reversed.