64 Vt. 379 | Vt. | 1892
The opinion of the court was delivered by
The defendant contends that the burden of proof was on the plaintiffs to prove that the defendant did not deliver the thirty tubs of butter either on the cars or at the railroad station, whichever the jury found the place of delivery to be, and that the court below neglected to so charge the jury. Without deciding on which party this burden rested, we think the court instructed the jury that this burden was on the plaintiffs. Some time prior to June 13, 1889, the parties made a •contract by which the defendant was to sell and deliver to the plaintiffs at Georgia, Yt., either on the cars as claimed by the plaintiffs, or at the railroad station, as claimed by the defendant, two hundred tubs of butter of fifty pounds each at nineteen cents a pound. It was conceded that some time between that date and the 13th day of June, the defendant delivered to the plaintiffs one hundred and seventy tubs of butter and some cheese, and that on the last named date he drew upon the plaintiffs through the Howard
II. It was not error for the Court to refuse to instruct the jury that there was no evidence in the case tending to show fraud on the part of the defendant. The plaintiffs did not put their right of recovery on the ground of fraud on the part of the defendant. The sole question was whether or not the defendant delivered the thirty tubs of butter according to the terms of his contract. If he had not delivered the butter, the plaintiffs were entitled to recover. If he had delivered it, the plaintiffs were not entitled to recover, although they never received it.
III. The defendant was not entitled to have the Court comply with his request to instruct the jury that “ testimony tending to show that a witness has made statements out of court that contradict his testimony in court, is to be weighed with caution.”
“ The admissibility of evidence is a matter of law, but the weight or value of evidence is matter of faotP 1 Best Ev. ("Wood’s Ed.) s. 80, star page 101. The admissibility and rejection of evidence, and whether there is any evidence to go to the jury, are questions of law for the decision of the court; whether there is sufficient evidence, is for the jury. On the othei; hand, the decision of the facts in issue is the exclusive province of the jury. 1 Best Ev. (Wood’s Ed.) s. 82, star pages 103-105. This principle is illustrated by evidence of dying declarations. It is for the .Court to determine whether the declarations were made under such circumstances as to constitute
While it would have been proper for the court in its discretion to have called the attention of the jury to the infirmities which in fact often attend evidence of the alleged -oral admissions of parties, or alleged contradictory statements of witnesses
If this request be construed to be a request for the Court to express its opinion to the jury as to the weight of the evidence in question, then the defendant’s exception cannot avail him. As a general rule, the better practice is for the Court not to express any opinion to the jury upon the weight of evidence, and this is the usual course in a very large majority of cases in this State. It is not reversible error for the Court to express such an opinion if it still distinctly leaves the evidence to the jury to weigh and to draw such conclusions therefrom as are warranted by it, provided the language used by the Court in expressing its opinion, is not such as to mislead the jury in regard to their right to determine the weight to which it is entitled. Neither was it error for the Court to refuse to express such opinion. Gordon v. Tabor, 5 Vt. 103; Vincent v. Stinehour, 7 Vt. 62, (29 Am. Dec. 145); Stevens v. Talcott, 11 Vt. 25; Gale v. Lincoln, 11 Vt. 152; State v. Roe, 12 Vt. 111; Vale v. Seely, 15 Vt. 221; Sawyer v. Phaley, 33 Vt. 69; Missisquoi Bank v. Evarts, 45 Vt. 293; Durgin v. Danville, 47 Vt. 95; Doon v. Ravey, 49 Vt. 293; Pettingill v. Elkins, 50 Vt. 431; Rowell v. Fuller, 59 Vt. 688.
The court in substance told the jury that the statements made by the witness out of the court were not to be considered as evidence tending to prove or disprove any of the issues on trial, blit that their effect was to detract from the weight which might otherwise be given to the evidence of the witness thus contradicted. It was left for the jury to find whether in fact the witness, Bichards, had made contradictory statements out of court, and if it was found that he had, they were told that it was wholly in their “discretion to say how much it should bear upon his testimony given upon the stand, as contradicting or not con
IY. When the plaintiffs rested, the defendant moved the Court to direct a verdict for him, which motion was overruled, and to this ruling the defendant excepted. By proceeding with the trial after this ruling of the Court, and introducing evidence in defence, the defendant waived this exception. To have availed himself of it, he should also have rested. Driggs v. Burton, 44 Vt. 124; Blanchard v. Manahan, 44 Vt. 246; Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336.
V. After verdict, the defendant filed a motion in arrest of judgment, which was overruled, and to this ruling he excepted. At common law, “judgment can never be arrested but for that which appears upon the record itself.” Pechey v. Harrison, 1 Ld. Raym. 232, S. C. 1 Salk. 77; Sutton v. Bishop, 4 Burr. 2284, 2287. “ Such a motion can only be made on account of some intrinsic defect apparent on the face of the record, which would render the judgment in the case erroneous.’ ” State v. Carver, 49 Me. 588, (77 Am. Dec. 275); State v. Creight, 1 Brevard 169, (2 Am. Dec. 656); State v. John, 8 Iredell’s Law 330, (49 Am. Dec. 396); 1 Bouv. Law Dict. (14th Ed.) Article, Arrest of Judgment; 1 Rap. & Law. Law Dict. Article, Arrest of Judgment s. 2; 1 Blacks. Com. (Cooley’s Ed.) Book III., star p. 394. In Walker v. Sargeant, 11 Vt. 329 the court say : “A motion in arrest can be sustained only for matter apparent of record, and such things as take place on trial must be placed on record by a bill of exceptions, allowed by the court, before notice can be taken thereof for reversing a judgment, for they would never be proper for a motion in arrest.” In Blacks. Com. above cited, it is said: “And this is an invariable rule with regard to arrests of judgments upon matters of law, ‘that whatever is alleged in arrest of judgment must be such matter as would upon demurrer have been sufficient to overturn the
Judgment affirmed.