12 N.H. 474 | Superior Court of New Hampshire | 1841
The defendant, in this case, has moved for a new trial, on account of the conversation between the witness and one of the jury. It is singular, that notwithstanding the efforts made by the court to impress upon the jury the necessity of their entire freedom from suspicion of partiality, applications for new trials, on account of alleged misconduct of the jury, are so frequent. The injunctions by the court upon the jury are, invariably, that they do not converse among themselves upon the subject of the trial, until they retire to deliberate upon the verdict ; that they hold no conversation with any persons whomsoever about the case, and that they do not remain in the presence of other
We should, without hesitation, set aside this verdict, had there been any reason to suppose that the plaintiff was privy to the conversation between the juror and the witness. The safest rule is, that the verdict should always be set aside, if there appear the least attempt by a party to influence the juror. Hilton vs. Southwick, 17 Maine 303. It is not necessary, however, that the plaintiff should be privy to any corrupt conduct in the jury, to authorize us to set aside a verdict ; because if the jury, or any of them, be corrupt, we should not permit a verdict to stand, however innocent the party might have been. The evidence here shows careless and unguarded conduct on the part of the juror ; and perhaps more than that. No man who places himself in so suspicious a situation as Mr. Parmenter did, can complain if he be suspected. By what sophistry can a juror, sworn to give a true verdict according to law and the evidence given him, reconcile his reason and conscience to such conduct, and permit himself to listen to ex parte statements, which he would not dare to hear, if he thought that third persons
The defendant also excepts to the instructions of the court
The principle governing cases of this character is distinctly laid down in Eastman vs. Moulton, 3 N. H. Rep. 156. “ The party, when called, is in the first instance permitted to state only, that the book produced is his book of original entries ; that the charges are in his hand writing ; that they were made at the times they purport to have been made, and at or near the time of the delivery of the articles, or of the performance of the services. He may, however, be cross-examined by the other party; in which case his answers become evidence, and he is entitled to give a full explanation of any matter in relation to which an inquiry is made on the cross-examination. It is reasonable and proper that he should be made a witness, as far as the opposite side chooses to make him one ; and that, as far as he is made a witness, he should be at liberty to give a full explanation.”
If the defendant choose to make his opponent a witness as to the merits, he certainly should have the privilege of being cross-examined as to the merits. As soon as it appeared that the articles were delivered by a third person, and the book was rejected as evidence, the defendant should have stopped, if he did not wish to make the party a witness in chief. But he chose to go farther, and he must take the consequences of pursuing his inquiries. He wished to have the entire control of the witness ; to elicit from him such facts as he could, and then object that he was not competent, because the articles were delivered by a third person. He would thus preclude the plaintiff from any explanation of his evidence upon points which he could not testify to, except at the option of the defendant, and leave him just where in the case he saw fit, and with such an impression as he supposed would be the most unfavorable to him upon the minds of the jury. We think that the defendant must take the disadvantages of making his opponent a witness, with the advantages; and after he has chosen to make him a wit
Another question raised by the defendant, is, whether the instructions of the court to the jury, that they might allow interest upon the sum they should find due the plaintiff, from the time of the demand, or from the date of the writ, were correct.
It is somewhat extraordinary, that, upon a subject of so frequent occurrence, and one upon which the necessities of mankind would seem to require that the law should be early settled and understood, the authorities, both American and English, should be so numerous and so discordant. It is an extremely perplexing task to understand them; for, in many instances, they seem to have been decided without reference to any general principle. The most elaborate and able investigation of them in the books, is to be found in the opinions of Savage, C. J., and Sutherland, J., in the case of Reid vs. Rensselaer Glass Factory, 3 Cowen 387, in the supreme court of New-York; and in the opinion of Mr. Senator Spencer, in the same case, in the court of errors, reported in the 5 Cowen 587. It is unnecessary, in order to settle the
There are two classes of cases in which interest may be recovered. The first is the class referred to already, where it is an incident to the debt, founded upon the agreement of the parties, and is a legal claim, which the court are bound to allow. The other class is that where interest may be allowed by a jury, in the nature of damages. In the case before us, there was no term of credit given, at the expiration of which the court will allow interest on the purchase money for the goods, as in Mountford vs. Willes, 2 B. & P. 337, nor was there any usage of the business in which the debt was contracted, according to the principle stated by Lord Mansfield, in Eddowes vs. Hopkins, Dougl. 376; nor was there any specified period within which the debt was to be paid, and which, upon default of payment at the day, carries interest, as in Robinson vs. Bland, 2 Burrow 1086 ; nor has the account been liquidated by being rendered to the debtor, and no objection being made to it, according to the rule stated in Walden vs. Sherburne, 15 Johns. 224 ; Lintard vs. Graves, 3 Caines 226; Blaney vs. Hendrick, 3 Wils. 205 ; Boddam vs. Ryley, 3 Bro. C. C. 3, and various
Still, there are decisions of authority, the principle of which would seem to be applicable here, and render the interest a legal claim. Although it has been often stated that interest is not recoverable for money owing for goods sold and delivered; Blancy vs. Hendrick, 3 Wilson 205; Eddowes vs. Hopkins, Dougl. 376; still it is said by Lord Thurlow, in Boddam vs. Ryley, 2 Bro. C. C. 3, that “all contracts to pay undoubtedly give a right to interest from the time when the principal ought to be paid.” Here, there was no term of credit. The money for the goods was payable on demand, and ought then to have been paid. So in Gammell vs. Skinner, 2 Gallison 45, it was held that a demand of payment of an unsettled claim for wages, being equivalent to the rendering of an account, entitles to interest from such demand ; as, then the debt is liquidated, due and payable. If this be true, a demand of payment of an unsettled claim for goods sold would seem equally to be a liquidation of the demand, although a liquidation of an account is stated in Walden vs. Sherburne, 15 Johns. 224, to be a rendition of it, without objection by the debtor. And in Barnard vs. Bartholomew, 22 Pick. 291, which was as-sumpsit for money paid, and for professional services, and which came before the court upon the report of an auditor, interest was allowed by the court upon a demand, upon the ground that it was due upon a neglect to pay a debt after a special demand. It hgs been held in this court, that interest
It is evident, from this brief statement of some of the prominent authorities, that there is much conflict among them as to the cases where the court must allow interest as a matter of law, and as incident to the debt. But the instruction of the court, in this case, is correct, if the interest be a legal claim, or if it be competent for the jury to allow it by way of damages for the detention.
It is said, by Mr. Senator Spencer, in the case above referred to, and it is undoubtedly true, that much of the difficulty upon the subject of interest, has arisen from the confusion and mingling of those cases where the court must allow interest, with those where the jury may allow it. The jury were told that they might allow it after a demand, or from the date of the writ. This instruction was correct. The duty to pay, there being no special contract, arose upon the demand ; or, in the absence of a formal one, upon the commencement of the suit, which is a demand. If the money be not paid then, the jury may properly, and should, give interest upon the amount due, by way of damages for its detention.
In an anonymous case, reported 1 Johns. 315, it is held that juries have in many cases a discretion to allow interest by way of damages, according to the circumstances of the case, and that they might allow it on the amount of a partial loss upon a policy of insurance, if they saw fit. So, in Ed
In this case, there being no term of credit upon the goods.
Judgment on the verdict.