66 Conn. 196 | Conn. | 1895
This is an appeal from the judgment of the Superior Court as in case of nonsuit, rendered during a
The complaint alleges in the first count, that one Daniel Hand died December 17th, 1891, leaving a will by which the defendant was appointed his executor; that the will was duly proved February 8th, 1892, and the defendant thereupon duly qualified as such executor, but that said will contained no provision for the payment of the sum of $25,000, or any part thereof, to the plaintiff; that said Hand did not in his lifetime pay said sum, nor any part thereof, to the plaintiff; that the plaintiff duly presented to said executor his claim against the estate for the payment of said sum of $25,000, and that the executor notified the plaintiff that he disallowed the claim and refused to pay it. These allegations were admitted by the answer.
The other allegations are in substance as follows: (1) In January, 1876, said Daniel Hand agreed with the plaintiff that if he “would tutor and make arrangements so as to graduate” one Hollis T. Walker from the Yale Law School, he, the said Hand, in consideration of said services resulting in the graduation of said Walker in the summer of 1876, “would give said plaintiff the sum of $25,000.” (2) The plaintiff entered into said agreement and did tutor and make arrangements for graduating said Walker. (8) About July 1st, 1876, said Walker graduated from said Law School. (4) “ Soon thereafter said plaintiff called upon said Daniel Hand for a settlement for services rendered as per said contract, and said Daniel Hand told said plaintiff that he had placed in his will the amount of $25,000, payable to said
The second count contains the same allegations stated more in detail, and further alleges a promise by the plaintiff to forbear prosecuting his claim during Hand’s lifetime, and actual, forbearance, as induced by the promise of Hand to pay by will. The answer directly traversed each of these allegations ; and these allegations and denials constituted the issues put to the jury for trial.
The burden resting on the plaintiff to make out a prima facie case, within the meaning of our statute authorizing a nonsuit, was satisfied, if his testimony, assuming it to be true and drawing from it every favorable inference of fact that might reasonably be drawn, contained any substantial evidence supporting the affirmative of the issues so put to the jury for trial.
We have carefully examined the testimony reported in the record, and are satisfied that there was evidence (if the testimony could be treated as true) to go to the jury in support of the facts so put in issue. Indeed we do not see how there can be any serious doubt of this, when the testimony is considered independently of its apparent untruthfulness, and of the questions of pleading suggested by the loose construction of the complaint. The defendant, however, relies in support of the nonsuit upon the claim that the facts alleged, if proved, are legally insufficient to support a judgment; and the attempt to demonstrate this claim pervades his whole argument. His claim is that “ the nonsuit was granted because the evidence showed no cause of action that could be enforced by a court; because whatever cause of action, if any, was testified to, was without any legal consideration to support it ”; and he further maintains that the want of consideration appears in the complaint, and that the insufficiency of the complaint is ground for nonsuit.
During a trial to the jury the legal sufficiency of the ma
This rule has not been changed by the Practice Act. The elimination of all questions as to the legal sufficiency of the facts alleged on which issues are actually joined, from the trial to the jury of the issues so joined, if not more essential, is certainly as essential to the orderly conduct of an action under the new system of pleading as under the old. Trowbridge v. True, 52 Conn., 197; Merwin v. Richardson, ibid., 233. In Powers v. Mulvey, 51 Conn., 433, it was held that under the Practice Act, the denial of all the facts alleged in a pleading, is an admission that such pleading is sufficient in law, and the court says that a party caunot have “ the benefit of both a traverse and demurrer to the same facts at the same time.” Todd v. Munson, 53 Conn., 591, explains that it does not follow from Powers v. Mulvey, that a plaintiff is necessarily entitled to a judgment because he has proved the allegations of a complaint manifestly insufficient in substance. Undoubtedly in such case the legal sufficiency of the pleadings and findings of the jury to support a judgment, may be raised after verdict by a motion in arrest. But Todd v. Munson does not modify the well established rule that a party cannot go to a trial upon the issues made by his denials of allegations that may be demurrable, but are material as constituting a part of the plaintiff’s ease as he presents it, and upon that trial, claim the benefit both of a demurrer and traverse to the same facts; such allegations are not “ wholly immaterial to the right claimed by the pleadings,” within the
In this case the defendant did demur to the legal sufficiency of the complaint, stating his ground of demurrer as follows: “ Because if each count is to be regarded as containing only one cause of action, growing out of the alleged breach of the promise of Daniel Hand to pay the plaintiff by will, or at his death, it appears that the contract of Daniel Hand, in such case, was not to be performed in one year from the time it was made; and also, because no sufficient facts are alleged in either count to constitute such cause of action, or to entitle the plaintiff to the relief sought in his complaint.” This demurrer was overruled. It appears from the memorandum of decision appended to the record and referred to in the order overruling the demurrer, that the insufficiency of the complaint as aground of demurrer was not presented by the defendant in his discussion of the demurrer, and that this ground was not passed upon by the court, but was treated as abandoned. If, however, the demurrer to the insufficiency of the complaint must now be treated as overruled, and not simply as withdrawn by the defendant, we think it was properly overruled. As it was not confined to the prayer for relief, but included the whole of the complaint, it did not comply with the statutory provision that “all demurrers shall distinctly specify the reason why the pleading demurred to is insufficient.”
But if the defendant had properly demurred to the complaint, distinctly specifying the reasons for its insufficiency argued before us, and the court below had overruled such demurrer, he would not in that case have been in position during the trial of issues raised by bis denial of the material allegations of the complaint, to raise the question of the legal sufficiency of those allegations. The law gives him a different remedy. If the court erred in overruling the demurrer, he might stand on his demurrer and upon appeal from the final judgment obtain a reversal; or, if he preferred first to take the chance of a verdict in his favor, he might, after verdict against him, obtain a reversal of the judgment
Second. The other ground on which the nonsuit might have been granted, is the impossibility that the facts testified to are true; in other words, that the testimony for the plaintiff contains in itself a demonstration of its untruthfulness so conclusive that the court may treat it as furnishing no evidence whatever. We are not prepared to saj»- that a non-suit can in no case be granted for such reason. If, for instance, in this case, the plaintiff had offered evidence that his conversations with Hand, which constitute the whole of his material evidence, had taken place while the plaintiff was in his class room at Hew Haven and Hand upon his lawn at Guilford, it might fairly be claimed that there was no evidence to go to the jury. In the supposed case the testimony is' demonstrated by its conflict with well known physical laws to be untrue. The claim is made that in the case as it appears upon the record, the testimony is demonstrated to be untrue by its conflict with the recognized laws controlling human action.
The plaintiff’s case involves a contract made by a thrifty and saving man who had accumulated by his own efforts a large fortune, by which contract he agrees to pay $25,000. for services extending over a few months, and which might readily be procured for a few hundred dollars. Hand had no motive to benefit the plaintiff, to whom he had spoken but once before the contract was made. The plaintiff also proves that Hand had no motive for making such expenditure on behalf of Walker, who was.a brother of Hand’s brother’s wife. Walker lived until 1891, the year that Hand died. Hand’s will was made in 1872, and modified by fourteen codicils, the last made in 1889. By this will and these codicils moderate provision is made for several nephews and
The case further involves the plaintiff, immediately after he had earned his $25,000 by the graduation of Walker, accepting, in satisfaction of his existing right to the payment of $25,000, the statement of Hand (accompanied by a warm embrace and kiss in the presence of a croquet party on the lawn)- that he had made a codicil to his will giving him $25,000 ; and the absence of any communication between the plaintiff and Hand on this subject during the fifteen years that Hand survived, except a brief interview shortly before Hand’s death; the plaintiff during most of the time being in straits for money and harassed by debts. The taking place of the foregoing transactions are necessarily involved in the plaintiff’s case; there are other matters incidentally involved scarcely less extraordinary.
It would be folly to deny that this story so conflicts with
But the defendant claims that a story so highly improbable cannot be regarded as substantial evidence, unless supported by testimony of the highest character; and becomes practically impossible when supported, as in this case, by witnesses whose reliability is questioned. This is true; but then we must be asked to take the case from the jury because the credibility of the witnesses is not sufficient to justify belief in the story they tell, — and this credibility of the witnesses is the very matter which the law says must be submitted to the jury. If the court could say it is legally impossible for this story to be true, however credible the witnesses who testify to it may be, there might then be no substantial evidence to go to the jury ; but we cannot say this, and a nonsuit cannot be granted because the court is satisfied that the witnesses are not credible. If this testimony had been submitted to the jury and a verdict rendered for the plaintiff, the court, satisfied that the credibility of the witnesses had been so shaken upon their examination and cross-examination as to demonstrate that in believing such a story on such testimony the jury must have acted under some mistake or prejudice, might not hesitate to set aside the verdict. But a motion for non-suit cannot be permitted to operate as a motion to set aside a verdict against evidence. The latter is a proceeding by which the court may give relief for a palpable mistake made by the jury in weighing evidence submitted to them ; the former is a proceeding by which the court may take a case from the jury when, admitting the truth of the evidence submitted by the plaintiff and every favorable inference that may be drawn from it,.the issues must nevertheless be found against the plaintiff by force of some legal principle the determina
Strictly, a nonsuit is a mode of putting the plaintiff out of court without trial, as the result of his own voluntary action. By former practice when the evidence submitted by the plaintiff was in law insufficient to maintain the issue joined, the defendant might demur to the evidence, and on this demurrer the court might render judgment. It is said the practice of nonsuiting a plaintiff against his will upon his failure to prove his case, is a substitute for a demurrer to evidence; this is not quite true. The main purpose of demurrer to evidence was to raise questions of law that could conveniently be raised in no other way, and it essentially differed from a nonsuit, in that the judgment following the demurrer ends the litigation, whereas a judgment as in case of nonsuit is no bar to another action. When provision was made for reviewing questions of law by motions for new trial and reservations, the demurrer to evidence gradually passed out of our practice, and if such a demurrer has
It is held in many cases of high authority that the court has no power to order a peremptory nonsuit against the will of the plaintiff; that the plaintiff has a right by law to a trial by jury and to have the ease submitted to them (see language of Chief Justice Mabshall in Elmore v. Grymes, 1 Peters, 469). The involuntary nonsuit for insufficiency of evidence, was unknown to the common law practice of this State. It was not until 1852 that a statute was passed authorizing the court to grant a motion for nonsuit when it “should be of opinion that the plaintiff had failed to make out a prima facie case.” General Statutes, § 1109. This statute was held not to impair the right of trial by jury. Naugatuck R. R. Co. v. Waterbury Button Co., 24 Conn., 478. There have been but few cases brought before us under this statute, but we think the3r all point to a very limited field for its operation. The question is, in each case, as stated in Thames Steamboat Co. v. Housatonic R. R. Co., 24 Conn., 49: “ Is the plaintiffs’ evidence sufficient, in point of law, to make out a prima facie case in their favor?” We are not disposed to extend the statute, even in such an extreme case as the present one, so as to permit a nonsuit m any case where the facts claimed as presenting the question of law may depend upon the credit to be given witnesses, or may depend upon inferences of fact to be drawn from the testimony, as to which inferences the parties may reasonably differ.
If the court below granted the nonsuit on the ground that the allegations of the complaint, if proved, would not support a judgment, it erred, because the insufficiency of the complaint cannot be taken advantage of in that way. If the court granted the nonsuit on the ground that the testimony and the inferences of fact from the testimony, giving full credit to all the witnesses and drawing the most favorable inferences of fact that can reasonably be inferred, furnished no evidence to go to the juiy in support of the issues actualty presented by the allegations of the complaint and de
There is error in the judgment of the Superior Court.
In this opinion the other judges concurred, except Andrews, C. J., who dissented.