Lawrence v. Graves' Estate

60 Vt. 657 | Vt. | 1888

The opinion of the court was delivered by

Royce, Ch. J.

This was an action of assumpsit, in which the appellant claimed to recover the amount due upon a promissory note dated March 5, 1873, signed by the said E. A. Graves and made payable to Russell Lawrence, the father of the plaintiff, or bearer, in one day after date, with interest annually. In the settlement of her father’s estate the plaintiff became the owner of the note. The defence relied upon was the Statute of Limitations.

There were three indorsements on the note, one dated March 11, 1874, one May 22, 1878, and one of $5, dated August 22, 1883. No question was made about the first two, but the defendant denied that the third indorsement represented an actual payment, and it not being in the handwriting of E. A. Graves, be objected to its being received as evidence. The court admitted it in connection with the other evidence in the .case as a circumstance tending to show an actual-payment, and the defendant excepted to that ruling.

The decision made in Bailey v. Danforth, 53 Vt. 504, we regardas decisive of the-question presented by this exception. There, as here, the action was brought to recover upon a promissory note, and the defence made was the Statute of Limitations. There was an indorsement of |3.00 made upon the note within six years of the commencement of the action, and the plaintiff offered said endorsement as evidence tending to show part payment of the note. It did not appear that the indorsement was made by the holder or payee of the notes but it was used in evidence for the purpose for which it was offered ; and the court say that such an indorsement may be weighed in determining whether payment has been made, though of itself not sufficient to establish the payment:

It appeared that the indorsement on the note Avas made by Franklin E. LaAvrence; and the plaintiff was allowed, subject to the objection and exception of the defendant, to put the fol-loAving question to Lawrence : “ Noav you may state Avhy you put this indorsement upon the note Avithout stating any conversation that took place between you and Sarah. State what enabled you to put it on — Avhy you put it on.” The question did not call for any conversation that he had Avith the plaintiff at the time the endorsement was made and the ansAver given did not embrace any such conversation ; but in stating the circumstances attending the making of the indorsement he stated Avhat the plaintiff did in the matter of receiving the $5.00 that Avere indorsed. And he also stated, subject to a like objection and exception, that he made the indorsement by the direction of the plaintiff. The Avitness had testified that he made the indorsement, and the question put to him called for an explanation as to Avhy he made it.

It was allowable to sIioav Avhat transpired at the time the indorsement was made. Barber v. Bennett, 58 Vt. 476. The indorsement as we have seen, was evidence, but standing alone, not sufficient evidence, of a payment. It was incumbent on the plaintiff to introduce other evidence tending to show that such a payment was in fact made as appeared by the indorsement ; and what took place at the time the indorsement was made -would be pertinent evidence upon the- question' whether such payment was made. The questions put to the witness were proper and appropriate to elicit that information.

But it is claimed^that the answers given by the witness contravened secs. 1002 and 1003 of R. L., which exclude the testimony of living parties when the other party is dead.

Without considering whether the answers were such as claimed, it is sufficient to say that .error cannot be predicated upon an improper answer to a proper question. Tracy v. Gusha, 59 Vt. 257; Houston v. Russell, 52 Vt. 110. Eor, as is said by Judge Polaitd in Randolph v. Woodstock, 35 Vt. 291, “ If every trial in the course of which some witness, either by ignorance or design, makes some remark which is not proper evidence, must be regarded as a mistrial, very few verdicts could stand.”

The judgment is affirmed.