Homans v. Lambard

21 Me. 308 | Me. | 1842

The opinion of the Court was afterwards prepared by

Tenney J.

— The timber, the value of which is claimed in this action, unquestionably went to the use of the Kennebec Dam Company, but the promise attempted to be enforced, is alleged to have been original and not collateral; and such the jury have found it to be. The verdict is attempted to be set aside on the ground of misdirection of the Judge in matter of law. He instructed the jury, “ that if they were satisfied the timber was furnished on the credit of the defendant, and not on the credit of the dam company, the promise, was original and not collateral; and that the presentment of the bill to the treasurer, and the demand on him for payment, did not impair the plaintiff’s rights against the defendant, who would have been relieved, if the application had been successful.” We do not perceive how this instruction can be regarded as incorrect, standing unconnected with the facts. But in the argument it is insisted, that the defendant’s liability depends upon a construction, which the Court was bound to put upon certain language, which it is testified he used at the lime of negotiation, viz. “ I will exchange the plaintiff’s paper for dam paper and will be glad to do itand that therefore the matter was improperly left to the jury.

If the liability of the defendant depended entirely upon a written promise, expressed in these words, it would have been the duty of the Court to have put upon it a construction, and that construction would have been conclusive, if correct. But there was other conversation between the parties; also between the plaintiff and other persons in the presence of the defendant, which had a tendency to manifest to the defendant, the views entertained by the plaintiff on the subject of the sale of the timber. Other facts touching the matter were in evidence, all of which might have had an important influence in satisfying the jury of the true character of the transaction. It was for them alone to judge from the evidence, what was said and done, and then to determine therefrom the intention of the parties. It would have been a manifest invasion of their rights, for the Court to select a particular portion of the evidence, which the jury might, or might not believe, and, as matter of law, inform them, that their verdict must depend upon the construction, which the Judge should give to that, independent of other facts in the case. The meaning of the parties was to be gathered from all the evidence before them, and this matter of fact was submitted to them on testimony, to which no objection was made.

The presentation of the bill by the plain till’ to the treasurer of the company, if it were made, was by no means conclusive evidence, that the promise was collateral, but Was for the jury to consider ; it was a material fact for them, but not one from which any legal inference was to be drawn.

The defendant’s counsel requested, that the Judge would instruct the jury, as matter of law, that as the plaintiff had not obtained dam paper and presented it to the defendant to be exchanged or indorsed, the action was not maintained. We think he was correct in submitting the question of the intention of the parties, on this branch of the case, to the jury. The request for this instruction must have been upon the hypothesis, that it was proved, that the payment was to have been made by the defendant in the exchange of dam paper for that of the plaintiff. That very fact was in issue, and how the jury would settle it, could not be foreseen. The jury were properly left to settle the question of intention; and if the defendant had performed all that he was bound to do, he would be discharged; but if otherwise, the plaintiff was entitled to recover.

Judgment on the verdict.