11 Conn. 440 | Conn. | 1836
We have, at the present term, in the case of Perkins v. Catlin, ante, p. 213., disposed of several of the questions presented by this .record. At the trial, the note, when offered in evidence, appeared to have been indorsed by the plaintiffs, and C. Burrall, cashr.; but these indorsements had been erased, and it was proved, that the defendant indorsed the note, in blank, previous to the indorsements of the plaintiffs and Burrall. Under these circumstances, the indorsement was, prima facie, a contract on the part of the defendant, that the note was due and payable according to its tenor, that Davis would be of ability to pay it when it came to maturity, and that it was collectible, by the use of due diligence. It was, therefore, admissible, without any additional proof, under the fourth count in the declaration, whicht avers, that the defendant indorsed the note, and thereby promised the plaintiffs, that it was good and collectible, and should be good, and with due
It may be difficult to lay down any precise rule, by which courts, in all cases, are to be governed in applications for new trials for verdicts against evidence. They are, at common law, as well as by our own statute, addressed to our discretion, which is to be exercised so as to subserve the great end of all trials, a fair and impartial administration of justice. Each case, must, in a measure, stand on its own proper ground. While, on the one hand, courts will be careful not to interfere, arbitrarily, or in doubtful cases, with the appropriate province of the jury, on questions, which our constitution and laws have placed peculiarly under their jurisdiction, they will, on the other, exercise the power which the same authority has conferred on them, when the substantial ends of justice require it. Fox v. Clifton & al. 6 Bing. 754. S. C. 9 Id. 115. If, therefore, it does not clearly appear, that the finding of the jury is against the weight of evidence ; or that it is necessary to the justice of the cause that there should be a new trial; or that the result would or ought to be different, the court will not disturb the verdict. Deacle v. Hancock, 13 Price 226. The power of the court to grant a new trial for a verdict against evidence, is not to be exercised, unless ” in clear cases" Bartholomew v. Clark, 1 Conn. Rep. 472. “ The verdict ought to be manifestly and palpably against the weight of evidence,
The same rule which governs us, is the rule in Westmins
In Massachusetts and New- York, a similar doctrine prevails. Hammond v. Wadhams, 5 Mass. Rep. 353. Wait v. McNiel, 7 Id. 261. 1 Caines, 24. note a. Jackson d. Le Roy & al. v. Sternbergh, Id. 162. De Fonclear v. Shottenkirk, 3 Johns. Rep. 170.
With these principles in view, we have attentively examined and considered the evidence reported to us, by the judge, and the result is, a perfect conviction that no rule of law, which ever has governed, or ought to govern courts, in cases of this description, will justify us in depriving the plaintiffs of their verdict. We think, so far from this being a case of a verdict against the evidence, or manifestly and palpably against the weight of evidence, that it is one in which they had sufficient evidence to justify their verdict, and have drawn from it a correct conclusion.
In consequence of the opinion expressed by the judge, that the note was inadmissible under the first and second counts of the declaration, the plaintiffs introduced a witness, whose testimony, accompanied with a letter of the plaintiffs, was all the testimony material in the cause, relating to the indorsement of the defendant. It is apparent from the motion, that this person was a reluctant witness for the plaintiffs. The course of his examination, cross-examination and re examination, on the subject of objections made by the defendant to indorsing the note, and the manner in which he related the facts connected with that part of the case, evince, that, however upright his intention, he had no strong sympathy for the plaintiffs, nor felt any peculiar desire that they should obtain a verdict. Besides, the case was one, depending, as it did, on the testimony of a single witness, in which the advantages to be derived from the appearance and demeanour of the witness, the opportunity to judge of his intelligence and of the strength and correctness of his memory, were enjoyed, by the jury, but are lost to us. Sir W. Blackstone, in his Commentaries, vol. 3. p. 347., observes, by this [viva voce] method of examination, and this only, the persons who are to decide upon the evidence, have an Opportunity of observing the age, education, understanding, be-haviour and inclination of the witness: in which points all per
We have not, however, been governed, in the result to which we have come, by any considerations of this sort. Our attention has been directed to the substance of the testimony, as detailed in the motion; and we find much in it to warrant the deduction made by the jury, and to justify us in giving effect to the conclusion they have drawn from it.
It is to be recollected, the single point to which the testimony was directed, was, in the language of the instruction, ‘‘ whether the defendant indorsed the note as the surety of Davis, or as surety of Davis and the Laflins ?”
The jury, in drawing the inference, that he intended, by his indorsement, to give to the payees additional security for the eventual payment of the note, were probably influenced by some, or all, of the following considerations. The plaintiffs were men of good property, and stood in no need of the defendant’s assistance, to enable them to obtain money. It is not pretended, they were under any necessity to procure the note to be negotiated ; or that they, in fact, ever negotiated it. If their condition had required them to raise money, by a discount of negotiable paper, it would hardly be supposed, they would seek to be accommodated through the indorsement of a person living in the interior of Connecticut, a stranger to all the money lenders in their neighbourhood ; and this too, when they were themselves in good credit, possessing abundant property, and every facility to obtain all the funds which they required. In view of these facts, the enquiry would very naturally arise, could the plaintiffs have had any other object in asking for the guaranty of the defendant, and paying him more than one half of one per cent, for it, than to secure the responsibility of Davis ? Their object, however, is not left as a matter of inference or conjecture. Their letter to Gale states it, in the most explicit terms. “ Mr. Davis being a stranger to us, we preferred giving that,” (one half per cent., for indorsing,) “ rather than to have it without, or even one per cent., in case he will not do it for less. We like, to have our notes doubly fortified, when we can. The note being payable to us,
The note was sent to obtain, the defendant’s indorsement, because he had previously agreed to indorse the note of Davis to be delivered to the Laflins ; Davis, at this time, living in Middletown, near the defendant. It was impossible the defendant should have supposed the note was transmitted to Gale, to procure his indorsement on the, plaintiffs' note, or as, second indorser on Davis' note. He knew he had agreed to indorse a note of some description, which should be given to the plaintiffs, by Davis, and as security or surety for Davis. And he was not ignorant of the fact, that the plaintiffs had sent this note to be indorsed by him, in pursuance of that agreement.
This is rendered very obvious from several parts of the evidence reported to us. When Gale presented the note to him, he "told him his business.” And what was it? The letter of instructions, which he had received the day preceding, furnishes the answer. It was to procure a guaranty of the note of Davis. And although the letter was not shown to the defendant, nor was he asked, in terms, to guarantee it; yet it is clear, Gale must have stated to him for what purpose he had called upon him ; and if we may presume, that he asked as a faithful agent, (which we ought to do,) he doubtless was understood, by the jury, to have testified, that he made known to the defendant the business for which he had sought an interview with him, viz., that he, (Gale,) had received from the plaintiffs a note signed by Davis, and at their request, presented it to him for his indorsement, in pursuance of a previous agreement to that effect, which he had made. It was a natural inference for the jury to deduce, that the defendant perfectly understood why he was solicited to indorse the note, and the object for which it was to be indorsed. The reason was, he had previously consented to become surety for Davis ; and the object was, to enable the plaintiffs to avail themselves of that suretyship, to ensure the final payment of the note to themselves.
This view of the case derives strong confirmation from the manner in which the subject was treated by the defendant. Does he deny the agreement to indorse? So far from this, he expressly admits it, but insists, that the note presented to him
We are aware it is urged, that it appears the defendant was not asked to guarantee the note; and it is hence inferred, he did not intend, by his indorsement, to make himself a guarantor. It is true, the word “ guaranty” was not used; but if the construction we have given to the whole testimony be correct, he did, in effect, enter into that contract of guaranty, which the law, prima facie, implies from a blank indorsement. He intended so to contract, and so he was understood, by the plaintiffs’ agent, to have contracted ; for the latter testified, that he supposed what the defendant had done, “ would be the same thing, or have the same effect,” as a guaranty.
It is further urged, that the defendant’s intention to become the surety of the plaintiffs, is inferable from his declaration, that “they would have to indorse the note before they could get the money upon it.” It is not, perhaps, entirely certain what the defendant meant, by this expression: but it is certain, he indorsed it previous to the plaintiffs; that they had made no agreement to indorse it; and there is no evidence, that they intended to negotiate it, or that it ever has been discounted. Under these circumstances, to presume he intended to become liable as indorser, only in the event that the plaintiffs indorsed and negotiated the note, would be to establish a ground of presumption hitherto unknown to the law, and to substitute it for that which is said to be the ground of all presumptions, viz. the necessary or usual connexion between facts and circumstances.
It is also claimed, that the defendant was informed, by the plaintiffs’ agent, that “ the plaintiffs would want to grind the
We do not deem it necessary to extend these remarks. There are other points of view in which the testimony reported to us, might be considered, which tend to confirm the opinion we entertain, that the verdict ought not to be disturbed. We forbear to notice them. We think the jury drew a correct conclusion from the facts before them ;-but even were this doubtful, the verdict is not so manifestly against the weight of evidence, that the cause ought to be sent to another jury. Consequently, we do not advise a new trial.
New trial not to be granted.