78 N.Y. 287 | NY | 1879
The action was for money loaned, and the verdict was directed by the court. The defendant alleges *290 error in not submitting the case to the jury. At the close of the evidence the plaintiff asked the court to direct a verdict in his favor, and the defendant then requested a like direction in his favor. The court stated that he thought the plaintiff entitled to the direction. The counsel for defendant then asked to go to the jury upon the question whether the debt in suit was ever contracted at all. This was denied, and an exception taken. Upon these facts we think that the defendant was entitled to go to the jury if the case warranted it. If nothing further had been done after both parties asked a direction of a verdict, it would be assumed that they intended to waive the right of submission to the jury, and consented that the court should decide the questions of law and fact involved. But after a request, and a refusal to direct a verdict, there is no absolute inconsistency in asking to submit questions of fact to the jury. It is not proper, ordinarily, to direct a verdict if there is any material question of fact which ought to be submitted, and it is error to make the direction in such a case. Parties may consent, however, that the court may pass upon all questions both of fact and law, and if they do they will be bound, and when both parties ask a direction this court will presume such consent. In this case the presumption is repelled by an express request to go to the jury upon a question of fact. Besides the court did not put the denial to submit the question of fact to the jury upon the ground that the defendant's counsel had irrevocably waived the right, but it was denied presumably upon the ground claimed here that the cause of action was proved by uncontradicted evidence, and that there was no question to submit, and that point is now before us for adjudication.
The action was brought to recover $2,500 loaned by the plaintiff to defendant's intestate on the 30th January, 1871, with interest, less $250 paid September 23d 1874. The plaintiff produced a check made by himself, dated January 30, 1871, upon the Bullshead Bank, payable to the order of the defendant's intestate, and indorsed by him and another person. It is not claimed that this check is evidence of *291 money loaned, but, on the contrary, the presumption is that it was paid upon some debt or obligation owing by the plaintiff. The evidence relied upon is the testimony of two witnesses as to certain acts and admissions of the intestate, which, if true, did establish a cause of action. One of them testified that, in September, 1871, he was present when the plaintiff and intestate were together, and the former produced the check and requested payment, and charged the defendant that he procured the money fraudulently; that the defendant admitted it, and "begged him not to prosecute him as he knew he could bring him to Sing Sing." This witness also testified that he was present on the 23d of September, 1874, when the intestate paid $250 on the check, and agreed to pay the balance in a few months. Another witness, the brother of plaintiff, testified that he was present when the $250 were paid, and corroborates the first witness as to the payment, but relates the conversation somewhat differently from the first witness. The plaintiff's counsel insists that this evidence being uncontradicted, could not as a matter of law be disregarded, and if there was nothing else in the case, this position would be correct.
It is a general rule that the positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by the court or jury arbitrarily or capriciously (Lomer v. Meeker,
This claim was not mentioned at that time, nor at any time, until nearly three years after the intestate died, and a considerable period after the expiration of notice to creditors *293 to produce their claims. In view of these, and some other circumstances, it cannot be affirmed as matter of law that the evidence of the two witnesses produced by the plaintiff was entirely undisputed and uncontradicted. No explanation was given of the item of $2,500 charged to the company on the same day of the alleged loan, and but one voucher was produced which might as well serve for that charge as the loan. It is not needful to determine how the fact was, but only that there were circumstances tending to show that the alleged loan was in fact money advanced to the company. It may be that the evidence of these two witnesses ought to outweigh all the circumstances referred to. All that we intend to decide is that it was a question of fact for the jury, and not one of law for the court, and that the rule invoked is not applicable to the case. It follows that the judgment must be reversed, and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.