24 Iowa 441 | Iowa | 1868
1. It is urged that the twelfth instruction, given by the court to the jury, is erroneous. It is as follows: “ If you find, that there is a conflict in the evidence and in the statements of the witnesses, it is your duty to reconcile such evidence and statements if you can. If you cannot, then you are to be the judges of the weight and credibility
It is impossible, from the nature of things, for the law to provide rules which shall determine the quantity or am,ount of evidence necessary to establish a fact in judicial proceedings. There can be devised no standard — no unit of measurement, whereby we may determine just what measure of evidence shall be required to prove a fact in issue. To say that one credible witness is necessary, is, a very unsatisfactory and indefinite rule indeed. As a matter of fact, evidence can usually be brought before a jury only through the medium of human testimony; there must, of necessity, be a witness, or one
The law raises certain presumptions and dispenses with proof in certain cases, as when the execution of an instrument, the foundation of a suit, is not denied under oath, it is presumed without proof. But when proof is not thus dispensed with, no fact can commonly be brought to the knowledge of a court except it rests on human testimony.
There must be, then, in most cases, to establish a fact, a witness, whether that fact be important or unimportant. But this rule gives no measure for the quantity of evidence, for knowledge, intelligence, qualities of memory, and all other attributes that make up ability, together with those moral qualities which constitute credibility; are most unequally united in men, so that one possessing all the attributes of ability and credibility in the highest degree, and so known to the tribunal before whom he testifies, would, in his evidence, outweigh an indefinite number of witnesses who possess the same attributes in the lowest degree. It is also true, that a witness, in order to prove a fact by his evidence, must be credible — he must be such a witness as will be entitled to receive the belief, the faith of others. But here again, from the very nature of the case, there are indefinite degrees in this character we call credibility. One may possess it in the highest degree, another in the lowest degree. It follows, therefore, that when evidence is weighed, to determine whether a fact has been proven thereby, all the qualities going to make up what is termed ability and credibility in a witness must be fully considered in order to arrive at a truth. And who should so weigh and consider these qualities % Most evidently the jury. The court cannot discharge this duty for them, because the very opinion which they may form upon these questions of ability .and credibility in truth determines their finding. If the witness
It is plain, that the evidence of a witness, possessing in the lowest degree the qualities of credibility, if in itself reasonable, and corroborated by other evidence, would be of great weight in arriving at the truth. Uncorroborated, it would fail to convince; and if unreasonable also, it would be of no weight whatever. The corroborating facts and the reasonableness of a hypothesis together might fail to convince, but the evidence of a witness, in himself wanting in credibility, might give such additional weight of evidence, that the hypothesis becomes to our minds a fact. Without one of these ingredients the evidence has no weight; with them all, it is satisfactory, and the mind settles down into belief of the fact. The evidence of a witness who is not credible, if corroborated and is not contrary to reason, ought not to be disregarded. Blanchard v. Pratt, 37 Ill. 246; Crabtree v. Hagenbaugh, 25 id. 240; Meixsell v. Williamson, 35 id. 531. Neither is the evidence of a witness to be disregarded, who in any material fact testifies falsely, unless such testimony be knowingly and willfully false, for it may result from an honest mistake, an infirmity
This instruction excludes the idea of payments upon the notes for the $574.75 borrowed; that very fact was in contest before the jury, and they were requested by plaintiff to render a special finding thereon. Now, if $574.75 were absolutely loaned, from June 4,1857, and a contract to pay usurious interest thereon entered into, and on the 5th of September, 1857, three months after, the amount was settled by a note of $550, 'without any payments there would be no usury in such note. But the instruction is not so qualified, and imports that there is no usury in the transaction, if the precise difference between the sums, together with the usurious interest, had been paid by the debtor. When money is borrowed at usurious interest, and a part thereof, with the usury, paid, and a note given at a legal rate of interest for the balance, the note is tainted with usury. Garth v. Cooper & Smith, 12 Iowa, 365; Smith, Twogood & Co. v. Cooper & Clark, 9 id. 376; Campbell v. McHarg, id. 354. This twelfth instruction of plaintiffs was therefore properly refused.
The instructions upon this branch of the case which were given to the jury, seem to be quite an accurate expression of the law. They are to this effect: that if
The instruction upon this point asked by plaintiffs, is erroneous because it is to the effect, that the declaration of Shaw itself, without the qualification that it was relied on by plaintiffs, and that they were ignorant of the existence of usury in the note, would work an estoppel against Shaw’s defense of usury.
The very same reasons, given to sustain the power of the court thus to render judgment for a sum less than the verdict, are equally applicable and conclusive in support of the right to render judgment for more than the verdict in proper cases, when, in the estimation of the court, it is too small, and the defendant elects to submit to such judgment rather than to an order for a new trial. The plaintiff is dissatisfied with the amount of his verdict, and appeals to the court for relief from its injustice. The court thereupon finds, that he ought, of right, to recover an additional sum, which the defendant concedes. Under such circumstances, a new trial could not be granted without the violation of justice as recognized by the tribunal chosen by the law for its administration. The plaintiff is tendered a judgment for a sum which the court declares is his just due — the very measure of justice, as fixed by the conscience of the court. He ought to accept it. But if he refuses it, and the court thereupon allows a new trial, it thereby aids him in an attempt to recover more than the judgment and conscience of the judge has fixed as the sum to which he is
It may be further remarked, that the deficiency in the amount of the verdict resulted from a mistake of the jury in calculating interest, or a failure to allow sufficient interest upon the notes, or one of them. Many cases may be found supporting the doctrine, that for an omission of the jury to allow interest, or a failure to find a sufficient amount, a new trial will not be allowed, especially if the verdict can be corrected without it.
The language of section 1791 of the Revision, which provides the penalty for violations of the law regulating
The witness Shaw made certain statements in regard to the payment of money on another note held by another party, which was objected to as irrelevant.
The witness was ashed to state what he thought he made oath to concerning a certain matter in his petition. An objection to this question was sustained. The object of the question was to lay the foundation for contradicting or impeaching the witness; it was improperly framed. It might have been proper to have stated the particular matter, and then ashed him if he had made oath thereto, or the better, and probably the correct practice, would have been to have shown the witness the petition, and then ashed him if he had sworn to it.
The introduction in evidence by the defendant, of the assignment of the first mortgage by Williamson, was objected to by plaintiffs but admitted by the court. It was an exhibit to plaintiffs’ petition, and could have been used by -defendant as evidence in his behalf without formal introduction.
It is claimed, that other evidence elicited by defendant was immaterial and irrelevant. We find no such errors in the record, and think that the rulings of the District Court upon the evidence, as upon all other points to which our attention has been called, are correct.
Affirmed.