Hewitt v. Wheeler

23 Conn. 284 | Conn. | 1854

Ellsworth, J.

We think the motion in arrest cannot prevail. The objection that the defendants cannot be made personally liable, because, as it is said, they were copied as a committee, is without foundation. They were copied as the debtors of Joseph Kinney, if at all, and could not be copied otherwise; being named as a committee, is mere surplusage. We say, if they were not personally liable as debtors, they are not liable at all, and then they could not be copied as a committee, in any intelligent or legal sense of that process. The plaintiff’, throughout the proceedings, has put her case upon the personal liability of the defendants, and for that very reason the defendants resist the claim. Magill v. Hinsdale, 6 Conn. R., 464. Simonds v. Heard, 23 Pick., 464. Windsor v. Griggs, 5 Cush., 210.

Nor is there more weight in the objection, that the declaration does not contain an allegation that the officer made demand of the debtor on the execution. The declaration contains averments, broad enough to let in such evidence, and we cannot admit that the court would have permitted a verdict for the plaintiff, if the fact of demand had not been duly proved. Besides, the allegation, that the sheriff “ duly served the execution on the 5th of March, 1849, and that he made return thereof, with his endorsement, that he had made demand of said debtor,” is sufficient after verdict. The return on the execution was, of course, before the jury, and proved the demand.

The motion .for a new trial for verdict against evidence, we think must be maintained.

On the former trial of this case, we held‘that the written contract, on which the plaintiff then relied for her claim, proved only an indebtedness of the Congregational society, and not of the defendants. We will not repeat the reasons there given.- It is now conceded, that the plaintiff cannot recover under the written contract, nor by reason of any indebtedness, growing out of it; but she claims to have proved a personal indebtedness of the defendants, outside of the contract, so that while the written contract shows that the society are the principals, and the committee are agents, in some way the agents have become principals, and the real principals have passed out of sight. This extraordinary transformation she endeavors to make out, chiefly, if not entirely, from the declarations of the defendants, said to have been made on different occasions and to different persons. We look with hesitation upon any such construction of the supposed admissions, for it is a construction alike unnatural, and without probable cause. Upon the plaintiff’s own showing, however, we see no admissions, inconsistent with the original and continued relation of principal and agent, as claimed by the defendants. They were always a committee, and, we think, should be taken to have always spoken in that capacity. What they said, what they did, what they admitted, and what they were ready to do, and wished to have done, are entirely consistent with this view of the matter, and inconsistent with any other; it would be unjust to consider the defendants as meaning to express themselves otherwise. We have carefully looked over the testimony of all the plaintiff’s witnesses, and have likewise compared it with the defendants’ testimony, and every reexamination convinces us, that, under the charge of the court, the verdict is manifestly against evidence. The testimony of the plaintiff by itself, when considered alone, is exceedingly feeble and unsatisfactory, but when the testimony of the defendants comes in and we learn that the written contract and title subsists, we are quite satisfied that the defendants should be held to stand in no new or different relation, from that created by the contract itself; and further, we are not sure that the Congregational society themselves were debtors, according to the terms of the contract, and the admissions of the defendants. The defendants uniformly denied it; but at any rate, as to themselves, and any liability because funds were in their hands, it appears that one of them had never collected but ten dollars, and that sum he had paid out, and that the other, at the service of the copying process, the 16th of May, 1848, had received $1,724.44, and paid out, and become responsible for $1,867.67. We are always unwilling to interfere with the verdict of the jury, but it is indispensable at times, and in a case so bald and palpable as this, we cannot hesitate a moment. It is not one of balanced testimony, but well nigh one, without any at all, and taking the whole together, there is not the least question in our minds, that the defendants were never the debtors of Mrs. Hewitt. For this reason we advise a new trial.

In this opinion the other judges concurred, except Waite, J., who was disqualified.

New trial to be granted.