Delano v. Goodwin

| N.H. | Dec 15, 1868

Smith, J.

.1. "Each separate and individual case must stand upon, and be decided by, the evidence particularly applicable to it.” Although "it is not easy in all cases to draw the line and to define with accuracy where probability ceases and speculation begins,” it seems clear that, ordinarily, evidence that the defendant entered into contracts with third persons in a particular form would not be admissible in tending to show that he had made a similar contract with the plaintiff. "The fact of a person having once or many times in his life done a particular act in a particular way,” does not prove "that he has done the same thing in the same way upon another and different occasionsee Hollingham v. Head, 4 C. B. N. S. (98 E. C. L.) 388; Jackson v. Smith, 7 Cowen 717; Spenceley v. De Willott, 7 East 108; Fileo v. Peebles, 8 N. H. 226; Wentworth v. Smith, 44 N. H. 419; Holcombe v. Hewson, 2 Campb. 391; True v. Sanborn, 27 N. H. 383; Lincoln v. Taunton C. M. Co., 9 Allen 181; Smith v. Wilkins, 6 C. & P. 180; Phelps v. Conant, 30 Vt. 277" court="Vt." date_filed="1858-02-15" href="https://app.midpage.ai/document/phelps-dodge--co-v-c-b-conant--co-6576316?utm_source=webapp" opinion_id="6576316">30 Vt. 277.

But where one of the questions at issue relates to the character in which the defendant acted, whether as a public officer or a private individual, the acts and conduct of the defendant in carrying on the business or undertaking in the course of which the controverted contract is alleged to have been made cannot be said to be collateral to the issue. If he may set up the defence that in all he did for the yellow fever patients he was acting as a public officer, it must surely be open to the plaintiff to show that, in one or more instances, the defendant while engaged in procuring assistance, &c., for these patients, contracted for it in his individual capacity. The defendant asks the jury to draw an inference favorable to himself from the character in which he was acting in all his dealings connected with this subject-matter. This makes the character in which he acted in any or all of the transactions in Kittery connected with the infection a direct issue in the case, and any evidence beai’ing on it is receivable.

Proof that the defendant employed Furbush about this business has no legal tendency to show that he also employed. Mrs. Delano. But, when it is proved or admitted that Mrs. Delano was employed by the/ -defendant, then evidence of the capacity in which the defendant contracted with Furbush, (although by no'means conclusive,) may/be weighed by the jury as one element of evidence from which to determine in what capacity the defendant was acting when he engaged Mrs ./Delano’s services. It might not be unreasonable to infer that the defendant probably acted in but one capacity throughout the whole undertaking. Moody v. Tenney, 3 Allen 327; Foye v. Leighton, 24 N. H. 29.

The objection to the testimony of Furbush and Mrs. Pryor''. must be overruled.

II. Before the statute making parties competent witnesses, the ordinary •way to prove their intent or understanding was by circumstantial evidence. But now that the party himself is admitted to testify there is no reason for confining his testimony to a variety of circumstances tending to show his purpose or understanding, when he knows and can testify directly what that purpose or understanding was. Accordingly it has been held that where the intention or good faith of a party to a suit becomes material, it may be shown directly as well as from circumstances ; and the party himself, if a competent witness, may testify directly to his intention or understanding, unless prevented by some other principle of law applicable to the particular case. Hale v. Taylor, 45 N. H. 405; Norris v. Merrill, 40 N. H. 395; Fish v. Chester, 8 Gray 506; Thacher v. Phinney, 7 Allen 146; Lombard v. Oliver, 7 Allen 155. The same principle must apply to the "understanding” of a party relative to the meaning or effect of a contract. To prove a contract it must be shown (except in cases where the doctrine of estoppel applies,) that both parties have understandingly assented to the same thing in the same sense; see 1 Parsons on Contracts, 4th ed., 399, b. But although the issue on trial is whether there has been a concurrence in understanding of two parties, yet it is not improper to prove separately the understanding of each; see Hale v. Taylor, 45 N. H. 405, p. 407. It is no objection to a single piece of evidence that it does not make out the whole of plaintiff’s case. The evidence to prove several propositions (all of which are requisite to the case,) may be of different kinds and drawn from different sources; see Blake v. White, 13 N. H. 267, p. 272. In proving a concurrence of understandings the plaintiff may prove his own understanding by one witness, and defendant’s understanding by another witness.

The admissibility of a party’s evidence as to how he understood a contract cannot depend upon the grounds of that understanding, though these grounds may often be very important in determining the credit to be given to such evidence. Whether his understanding is founded on personal knowledge, or hearsay, is of no consequence in point of law, provided it actually concurs with the other party’s understanding; and, if it does not so concur, then his testimony on this point is immaterial, except in cases of estoppel where the party claiming that the other is estopped would have to show how he himself understood the contract, and then show that the other party induced him to entertain and act upon that understanding.

\ Here the plaintiff was in law the contracting party, though the bar-, gsdn was made by his wife as his agent or servant. The plaintiff’s understanding of the contract was therefore one point in issue, and, although his understanding might naturally be expected to be the same as his wife’s, yet there-is no legal presumption to that effect, nor any rule which Yonfines the inquiry in the first instance to the wife’s understanding, and, then compels us to infer the plaintiff’s understanding therefrom. If the plaintiff and defendant both understood that defendant was personally liable, he is so liable whether the plaintiff’s wife so understood it or not. The plaintiff was therefore properly allowed to testify, that he understood that defendant alone was personally liable.

III. Even if the general rule relative to presumptions is as claimed by defendant, still he has no ground of exception in this case, for there is here no evidence on which to found the presumption. It did not appear that the fact that the defendant, a physician and municipal health officer, residing in the vicinity, claimed to be acting as a United States Government official, was made known to the plaintiff or his wife; see Smith v. Hopkins, 13 Johnson 313. Neither was the defendant, in fact, a public officer within the usual meaning of the term. He held no commission or appointment. The only transaction between the United States Government and the defendant consisted in their surrendering to him the charge of an infected ship with the understanding that he was to look to the ship for the payment of all expenses.

Judgment on the verdict.