7 Wend. 408 | N.Y. Sup. Ct. | 1831
By the Court,
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.
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
Judgment reversed on first ground, and venire de novo awarded to Dutchess common pleas, costs to abide the event.