Foss v. Smith

79 Vt. 434 | Vt. | 1907

Rowell, C. J.

The 1750-dollar note in question, dated June 15, 1901, was given by the defendant-for boot in a hotel-farm trade between the parties. The defendant claimed it was paid. That depended upon whether he was to have the hotel furniture with the hotel for that amount of boot, as he claimed, and whether the note was to be, and was, paid in his stock and farming tools, as he further claimed; or whether he was not to have the furniture thus, but was 'to buy it separately at $1,700, and pay therefor in his stock and farming tools, as the plaintiff claimed.

It appeared that the parties met and agreed upon the price of the stock and tools, but they did not agree when it was. Plaintiff’s evidence tended to show that it was on Friday, June 14, the day after the fyargain was made, and the day before the note was given; while the defendant’s evidence tended to show that it was on Monday, June 17, the day he deeded his farm to the plaintiff. The plaintiff’s evidence further tended to‘ show that the price of the stock and the tools was more than enough to pay the $1,700- for the furniture, which, by agreement, was paid in full thereout, and that the plaintiff then paid the defendant in cash for seven calves and fifteen hogs and pigs, and $100 to.apply on other stock, leaving a balance of $180 due the defendant, which, by agreement, was, on July 1, 1901, indorsed on a note the plaintiff held against the defendant for $1,380-, known as the Smith & McCollister livery note. Defendant’s evidence tended to show that the $180 indorsed on that note represented a cash payment by him, and did not represent what the plaintiff claimed it did.

It appeared' that during most o-f the time before suit brought, the plaintiff had the note in question up as collateral, but there was no evidence that the defendant knew it.

As tending to show what the trade was, the plaintiff introduced evidence of the value of the hotel and the furniture and of the farm and the stock and tools at the time of the trade. The plaintiff produced a photograph of the hotel parlor and the furniture in it, taken at the time of the trade, and offered to verify it and put it in evidence, which was denied him, but on what ground does not appear. If there is any ground to- justify the court’s action, error does not appear, and we think there is a ground; for while the photograph might show the form and fashion of the furniture, and something of its condition, it could show little or nothing of the kind and quality of the material of which it was made, which were very essential elements of its value, and the amount of evidence on the question of value might have been such that the court thought it not needful to cumulate it further by testimony so slight and uninstructive as that afforded by the photograph.

The defendant was allowed to testify that he never had notice that his note was held as collateral. The plaintiff argues that this was error, for that the testimony could have no other tendency than to induce an inference of no pledge from the fact of no' notice, which would be res inter alios. The exceptions do' not show the purpose for which the testimony was received, but it had a tendency to prevent an inference of notice from the defendant’s silence, and such an inference would have made against his testimony about having forgotten for three years that he gave the note. For this purpose the testimony was admissible, and is not argued against.

Mr. Bullard’s argument to the jury as to the dangerous character of the plaintiff was based upon the testimony, and was not so1 unwarranted by it as to be error. In civil cases, considerable latitude is allowed counsel in commenting upon the parties from the testimony. It is when they get outside of the testimony that the line is sharply drawn.

Mr. S'enter’s argument was not provoked by Mr. Redmond’s, and he incorrectly stated what Mr. Redmond said; but the jury knew that, and would not be misled by it. Mr. Senter stated nothing as a fact, but only as a guess, and as an assent to what he represented Mr. Redmond as saying. While this was not a style of advocacy to be commended, it was not SO' vicious as to require reversal. If he had asserted as a fact what he said as a guess/it might have been different.

His argument that as matter of common knowledge it is easier to copy or simulate handwriting with a lead pencil than with a pen, was but appealing to the general experience of the jury as to the comparative facility with which those instruments can be used, a matter concerning which they might well be supposed to have some practical knowledge.

The petition for a new trial is based upon the finding of a receipt in the town clerk’s office in Stowe a few days after the trial, made and dated June 17, 1901, the day the defendant deeded his farm to the plaintiff, and signed by both parties, stating that on June 14, 1901, the defendant received of the plaintiff his pay in full for seven calves, fifteen hogs and pigs, and $100' on stock, leaving $180 due the defendant, to be applied on a certain note for $1,750, dated June 15, 1901.

As already appears, the parties differed widely as to what the trade was, and much testimony was introduced in support .of their respective claims, coming largely from witnesses who undertook to- reproduce from unaided memory what they claimed to have heard the parties say about it several years before the trial. It became and was material to show when the parties met and agreed upon the price of the defendant’s stock and farming tools, whether it was on Friday, June 14, as the plaintiff claimed, or on Monday, June 17, as the defendant claimed, concerning which there was much testimony on both sides; some, mere matter of unaided memory; some, memory refreshed by incident; and some, memory refreshed by memorandum and incident.

The defendant took no testimony in defence of the petition, and does not deny that he signed the receipt, that it was read to him, and left with the town clerk, as she says in her affidavit. This receipt is strongly corroborative of the plaintiff’s claim, and amounts to a deliberate admission by the defendant that the stock and tools were appraised on the 14th, and paid for then into' $180 in some way other than 'by application on the note in question, which is thereby expressly recognized as outstanding and unpaid; from all which the inference is strong that the bulk of the appraisal was applied in payment for the furniture, as the plaintiff claims, for there was nothing else to apply it on. But though that $180 were never applied on that note, yet that is accounted for by the plaintiff by the receipt of July i, 1901, purporting to be signed by the defendant, acknowledging the receipt of that $180, to' settle in full for all the personal property the plaintiff bought of him on his farm, and reciting that that amount had been that day indorsed on the Smith &' McCollister livery note. True, the defendant denies that the $180 indorsed on that note that day grew out of their trade in any way, but says that the indorsement represents a cash payment by him, and that that receipt is a forgery, and he so testified.

But when we consider the character and conflict of the testimony; the fact that the note in suit is still in the plaintiff’s possession; the unlikelihood that he would admit it paid, as claimed, when he had but recently employed counsel to commence suit upon it; the unsatisfactory reason the defendant gives for not taking it up if he paid it as claimed, as he was not a man of-such ample fortune that he would be likely to give a - 1750-dollar note and straightway forget it and not think of it again for three years, as he testified, but which is refuted by the receipt of June 17; and when we further consider that the burden of showing payment rests upon him; that he has to claim forgery, a thing presumed against, in order to overcome the receipt of July 1, and that the testimony strongly tended to show that the plaintiff’s property was worth considerable more than the defendant’s property, we think that with the receipt of June 17 in the case, there would be a strong probability of a different result on another trial.

Nor is said last-mentioned receipt cumulative evidence, for it is a deliberate admission by the defendant that the note was not paid as he claims, and no such admission was shown on trial.

Nor was the plaintiff in fault in not having the receipt at the trial, nor in not moving for a continuance because he did not have it. When preparing his case for trial, he was under an impression that he had some sort of a receipt from the defendant concerning his farming tools and stock that formed a part of the trade, and at the request of his counsel he and his wife made diligent search for it among all of his papers, but could not find it, and then concluded that he either never had one or had lost it. .Right after the trial he went to the town clerk’s office in Stowe to see if there was anything there to show why his deed from' the defendant was not recorded till twelve days after it was given, and in looking for such a paper the town clerk found the receipt, which she had entirely forgotten about, and which she had not seen since it was left with her by the parties at the time it was signed, and which the parties had not seen, and the plaintiff had forgotten that it was left there, but as soon as it was found, he remembered about it.

Judgment of no error on trial, but judgment below reversed pro■ formal; petition sustained with costs, verdict set aside, new trial granted, and cause remanded.