Doon v. Ravey

49 Vt. 293 | Vt. | 1877

The opinion of the court was delivered by

Powers, J.

I. Complaint -is made because the court below declined to answer the defendant’s request to state to the jury the weight that should be given to certain deeds in evidence. It is insisted that the court should have told the jury, in substance,' that the deeds were important evidence for them to consider. The court is not bound to express any opinion in the charge, upon the weight of evidence offered on the trial. It is the province of the jury .to judge in this behalf; and the court is not bound to answer a request to charge, unless it involves some proposition of law applicable to the evidence adduced. ■

II. It is claimed that the court erred in receiving proof of the admissions made by the defendant on the occasion of an attempted settlement after the suit was brought. Admissions made'on the occasion of an attempted settlement, if parcel of the treaty for a compromise, and made in furtherance of the treaty, are privileged, and cannot be given in evidence against the party making them, because they are made upon a confidence and trust, and are_ received as such by the party to whom they are addressed. But if a party during such treaty admits a fact to be- true because it is a fact, and not because he is willing to treat it as a fact for the purposes of the then pending compromise, it may properly be shown in evidence. This distinction runs through all the cases cited by the defendant’s counsel. The cases are collected in the notes to Phillips on Evidence. Stanford v. Bates, 22 Vt. 546.

III. It is insisted that the court erred in holding that the item in dispute could be recovered under the common counts in assumpsit.

The verdict has established the fact that the defendant misapplied the plaintiff’s promissory note — he used it to pay a debt of his own, and thus made it answer the purposes of money to his own benefit. It was the same thing as though he had paid his debt with the plaintiff’s money. It is, theu, to be treated as a money payment, and may be recovered in this form of action.

In Conn. & Pass. Rivers R. R. Co, v, Newell, 31 Vt. 364, a case not cited by either party, Judge Redfield says, “ Promissory notes, bills of exchange, and bank bills, when received as money, have long been allowed to form the basis of recovery upon the common money counts.”

Judgment affirmed. Execution stayed as to amount of the trustee judgment.