| N.H. | Jun 15, 1871
The opinion of the court upon this second case was delivered December term, 1871. It was as follows:
The suggestion of the defendant’s counsel, in the former case, that the decision of the questions then raised would end the case, has not the character of an agreement that the court could specifically enforce. The plaintiff, indeed, makes no agreement upon the subject; and after delivering the opinion, the case was discharged without objection, leaving the action open for trial.
The court, therefore, was right in the present case, in ruling that the plaintiff was not entitled to judgment by virtue of the former decision. Nor was there any error in the instructions that, if the note was paid, or the plaintiff was estopped to deny that it was paid, the verdict should be for the defendant.
In regard to these instructions, no exception was taken that there was no evidence tending to prove these grounds of defence, but that the weight of evidence was the other way.
It is true that no evidence is reported to the effect that Stackpole had changed his position by reason of the statement of the casliier that the note had been paid, but the case does not profess to contain all the evidence adduced ; and it is not objected that there was no evidence on this point, but that it was not sufficient in weight.
There is nothing, however, disclosed that would justify setting aside the verdict as against evidence, neither is that question sent here.
The remaining question is, whether the testimony of Haskell as to the statents of Haley, the cashier of the plaintiff, was admissible. His statement was, that since the suit was brought, Haley, the then cashier of the bank, informed him that there were no notes other than the two which Stackpole had settled, although, on cross-examination, Haskell said that Haley stated that there was about $500 due on the $800 note.
If there was any materiality at all in this statement of Haley, it is in the representation that there were no other notes in the bank but the two which were settled by Stackpole, — from which, standing alone, it might be inferred that the $800 note was paid ; but, taken in connection with the rest of the statement, no such inference could be made, but the contrary, that $500 was not paid.
The jury having found that the whole note was paid, or that the plaintiff was estopped to deny it, it must be obvious that the plaintiff was not prejudiced by this statement, inasmuch as it tended clearly, as far as it went, to prove that it was not paid.
We think the verdict should not be disturbed on that account. In fact, it does not seem to be much relied on, not having been mentioned in the plaintiff’s brief, and barely mentioned in the oral argument.
An amendment was made to the case on the subject of the payment of the note, but as it bore only upon the weight of the evidence, and had no tendency to show that there was no evidence of payment, or that Stackpole had not changed his position, but the contrary, it could not affect our views as to the result. There must, therefore, be
Judgment on the verdict.