119 Mass. 449 | Mass. | 1876
The defence in this case was that the note in suit was signed by the defendants at the request and for the ac«
1. Warner, one of the indorsers, was an attorney at law, and was called as a witness by the plaintiff. Upon cross-examinatian, it appeared that he had aided the plaintiff in the proceedings taken to enforce the note in suit against the defendants.
The plaintiff requested the court to instruct the jury “ that the fact that Warner aided in collecting the note is no evidence of its payment.” The court properly refused this request. It was for the jury to determine what was the significance of the acts of the witness, and how far they tended to contradict his testimony, and thus indirectly bore upon the question of payment. There is nothing in the bill of exceptions to show that the evidence was admitted or applied for any other purpose.
2. The court properly refused to rule that “ if it were shown that the new note was credited upon the books of the Trust Company, it would be no evidence of payment.” The entries upon the books of the plaintiff, and such explanations as it chose to give, were properly before the jury, and they alone had the right to judge of their weight as evidence upon the issue before them
This instruction was given in substance by the court. The plaintiff has no ground of complaint, because the subject of the request was fully covered by the instructions given.
4. At the close of the charge to the jury, and as they were about to retire, the plaintiff asked the court to give the additional instruction “ that, unless Hubbard, Warner and Post, the indorsers, intended to give their note in payment of the note in suit, it would not be a payment.”
The court refused this instruction, but in answer to it in-i structed the jury that “ the transaction at the time the new note was given is not only to be considered with regard to what Warner, Hubbard and Post did and intended to do about it. If the bank received the new note; if the bank, which was the real creditor, chose to receive it and did receive it as payment, and surrendered this note in suit, gave it up and received that in payment, then it was a payment.”
The instruction asked makes the question, whether there was an agreement between the plaintiff and the agent of the indorsers, that the new note should be in payment of the old, turn wholly upon the intentions of the indorsers, without regard to the acts and agreements of the agent. It would tend to confuse and mislead the jury, and was properly refused.
The additional instruction given in answer to it, if it were to be considered by itself, as intended to state the whole law applicable to the subject, would be imperfect. But it cannot fairly be so considered. The court had distinctly and repeatedly instructed the jury that the defendant must prove an agreement between the parties that the new note was to be taken as payment of the old one. The additional instruction was given, and must be construed with reference to these previous instructions. Thus construed, we think it was intended substantially to repeat the former instructions, and to instruct the jury that, if the bank received the new note, under such an agreement, as payment, and surrendered the old note, it was a payment, although the indorsers may
jExceptions overruled.