Carr & Blanchard v. Manahan

44 Vt. 246 | Vt. | 1872

The opinion of the court was delivered by

Redfield, J.

This was an action of general assumpsit to recover payment for several bills of liquor sold in the city of New. York.

I. The deposition of Herman A. Blanchard was offered in evidence by the plaintiffs. The caption states that the “ deposition was taken at the request of Carr & Blanchard, in which cause Carr & Blanchard are plaintiffs.” The style of plaintiffs’ partnership is “ Carr & Blanchard” ; and by this name the suit is instituted. The caption is sufficiently certain, and a substantial compliance with the statute, as has been heretofore decided by this court.

II. When the plaintiff had rested his case, the defendant moved that plaintiff become nonsuit. The court overruled the motion, on the ground that plaintiff had given some evidence tending to show a sale, to which defendant excepted. Thereupon the defendant proceeded with evidence on his part; to which the plaintiff replied. When the case was submitted to the jury it was a different case from the one when defendant interposed his motion for nonsuit, and it was made so by the election of the defendant to submit evidence on his part, and thus invite the plaintiff to respond with further evidence. We think that the defendant waived his motion and exceptions thereto, by his election to proceed further and make another case.

III. The defendant excepted to the refusal of the court to order a verdict for the defendant. We think there was evidence tend- ’ ing to prove that the defendant purchased and became responsible for the liquors. The weight and force of that evidence was a matter solely for the jury.

IY. The plaintiff, for the purpose of showing that defendant had an interest in the business of selling this liquor, and of contradicting Dauiel Manaban, a witness improved by the defendant, offered in evidence an application for license to sell, at retail, purporting to be signed by the defendant, but the signature was in the hand writing of the son, Daniel Manaban.

To the admission of this paper in evidence the defendant ex- • cepted.

The document was clearly admissible to contradict Daniel Man-ahan. And we think under all the evidence detailed in the exceptions, and the circumstances in the case, it was legally admissible as evidence in chief, under proper instructions, presumed to have been given, by the court. The exceptions state that “the plaintiff’s evidence tended to show that the defendant was interested in that business, and that the liquors were used and sold for his benefit, or for the joint benefit of Daniel Manahan and the defendant.”

Smith testified that “ in July or August 1871, he presented to defendant the bill of these liquors for payment, and he then said that.ho would settle it.”

Daniel Manahan testified that during the first year the business was conducted for the benefit of the defendant; and that after that year he leased the premises of the defendant, and conducted the business on his own account.

It is sometimes very difficult, where a business is seemingly and ostensibly conducted for the benefit of a family, to so sift the relation that the real interest of each may be reached. It is usually more natural to refer the interest to the father — the head of the family and the usual source of the property. And cases are not unfrequent where the oivnership is ever in transition as may best delay and foil the creditor in pursuit of his pay.

In connection with this evidence we think the manner in which the business was conducted ; under what name and style ; under what sign ; and under what license, were pertinent facts tending to show the character of the business and in whose interest it was conducted.

The defendant has made the point, in his brief, that the sale of the liquors, if proved, was in. contravention of the statute of this state, and therefore void. But no such question seems to have been raised in the county court or certified into this court. This court sitting in error can only consider and correct such errors as are certified and made affirmatively to appear.

The judgment of the county court is therefore affirmed.