Chalvet v. Huston, 43 App. D.C. 77

Chalvet v. Huston

43 App. D.C. 77 | D.C. Cir. | 1915

Mr. Justice Robb

delivered the opinion of the Court:

It was error to exclude the testimony of the plaintiff as to *81the contents of the lost letter which his whfe had read to him. Gulliford v. McQuillen, 75 Kan. 454, 89 Pac. 927; Ryland v. Heney, 130 Cal. 426, 62 Pac. 616. The letter having been lost, and the person who read it to the plaintiff having died, the testimony offered was the best evidence obtainable. The weight of such evidence, however, is for the determination of the jury. Laster v. Blackwell, 128 Ala. 143, 30 So. 663; Apperson v. Doway, 82 Va. 770, 1 S. E. 105.

Having in mind the oft-repeated rule that a verdict should be directed only where, accepting as true every fact offered in evidence by the plaintiff, with every reasonable inference deducidle -therefrom, a conclusion utterly opposed to plaintiff’s right to recover would be reached by all fair-minded men. (City & Suburban R. Co. v. Cooper, 32 App. D. C. 550), we think the court erred in directing a verdict in the present case. There was evidence, as we have seen, tending to show that the defendant, whose home was encumbered, wrote the plaintiff for s loan. It is clearly established that the plaintiff, who was under no obligations to the defendant, sent $2,100 of his, the plaintiff’s, own funds, which the defendant and his wife received. That the defendant knew that this was not a gift, and knew that the plaintiff did not so understand it, is evident from his own letter to the plaintiff of December 15, 1910, wherein he informed the plaintiff that “we made out the mortgage on our house just as mother wanted it, so you see that every thing is alright.” That this money was not actually used in liquidating the encumbrance on defendant’s home is merely a circumstance to be taken into consideration, with all the other facts and circumstances of the ease. It was for the jury to say ■whether the failure of the defendant thus to apply the money was not a part of a scheme to appropriate it, and it was equally for the jury to say under the evidence whether the defendant did not really receive the benefit of it.

Judgment reversed, with costs, and cause remanded for a new trial. Reversed and remanded.