Read v. Hurd, 7 Wend. 408

Read v. Hurd

7 Wend. 408 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

The effect of the payment by Skiff, of course, depends upon his authority to make it for the defendant; a payment made by a stranger for a defendant, without any authority or instruction from him, cannot prejudice his rights. If the evidence had simply been that the endorsement was made on the day it bears date, when the effect of it was clearly against the plaintiff’s interest, it would have been competent and prima facie evidence of a payment on that day by the defendant. Roseboon v. Billington, 17 Johns. R. 184. 2 Campb. 321. But here the plaintiff’s own proof goes further; it shows affirmatively that the endorsement was made in consequence of money paid, not by the deféndant, but by one Skiff. Perhaps if the evidence had stopped here, the legal presumption might have been, that Skiff was the agent of the defendant in making the payment, as it is not usual for one man to pay another’s debt without, at least, a request. But the witness Hollister, stated, without its being objected to by either party, what Skiff said at the time of the payment and the endorsement, in relation to his authority. *411It appears from what then took place, that about two years before that time, that is, in October, 1822, the defendant, Read, had sold Skiff a steer, for $32,50, and directed him to pay the amount to the plaintiff Hurd, but did not say on what account it was to be paid. The plaintiff Hurd at the same time said, Read had agreed it should be paid and endorsed upon the note; but Read never mentioned the note to Skiff, but directed him in general terms, to pay the money to Hurd. It does not appear whether the price of the steer was to have been paid immediately by Skiff, or whether the sale was upon credit. If no credit was given, it may admit of very serious question whether, as between the plaintiff and the defendant, the payment must not be considered, (so far as the question of the statute of limitations is concerned,) as made, when, by the terms of the agreement between Skiff and Read, it ought to have been made. If not, then it was in the power of Skiff, at any period, no matter how remote, to have revived this note, by a payment to the plaintiff. There is no evidence that the defendant was actually privy to, or had any knowledge of the payment or the endorsement. Considered as a question of law, it is by no means clear that the evidence was sufficient to prove an acknowledgment by the defendant within six years.

But it was a proper question, under all the circumstances of the case, for the jury, 17 Johns. R. 187, and it should have been fairly left to them. Admitting that the question was not absolutely taken from the jury by the court, still, their -opinion, considered as an opinion upon the weight of evidence) was much stronger than it ought to have been, and was calculated to make an erroneous impression upon the minds of the jurors. The charge, therefore, was erroneous, and the judgment must be reversed on that ground.

The errors on the face of the record ar eformal defects, which we are authorized by the statute to consider as supplied and amended. 2 R. S. 601, § 60. They would certainly have been amendable by the court below. The errors are these; The plaintiff’s damages, as laid in the declaration, were $200; the damages given by the jury were $244,11, over and above his co sts, and for those costs six cents. The plaintiff, as he *412had a right to do, entered a remittitur upon the record, of the excesg) but he also included in his remittitur the costs given by tbe jury, as well as the excess of damages, and he remitted $44,17, parcel of the damages, costs and charges, <$£c.; and tbose costs having been remitted, there was no authority for awarding costs of increase. It was obviously a mistake, and ought to be disregarded. The record also takes no notice of the issue upon the statute of limitations; the jury simply find that the defendant did undertake, and promise, &c. That this omission may be amended, is shown by the case of Stakes v. Campbell, 7 Cowen, 425, and the bill of exceptions which is attached to the record, shewing that the jury did in fact dispose of that issue, and in what manner they disposed of it, it may be considered as amended, without any application or motion upon the subject. 2 Payne & Duer, 273.

Judgment reversed on first ground, and venire de novo awarded to Dutchess common pleas, costs to abide the event.