54 N.H. 532 | N.H. | 1874
Wheix the plaintiff, at the close of the fix’st day’s work pressing hay, had an interview with Gray, the mortgagor of the hay, and the defendant who had bargained for it, and, as the jury have found, assented to the sale by the mortgagor to the defendaxxt, and agreed to receive the pi’ice which the defendant was to pay Gray for it, that would be a waiver of any wrongful act which the defendant might have performed in pressing the hay. He assented to the sale which Gray had xnade of the hay, and this consent would x-elate back and be a ratification of Gray’s acts from the beginning. It is not very matex’ial, probably, whether the agreement was that the plaintiff should have the pay for the hay or xxot, or, if that was the agreement, whether he ever received such pay. If upon any consideration, past, present, or prospective, whether executed or executory, the plaintiff* consented that Gray should sell his hay to the defendant, that was enough, even though such consent were not in writing, or though it were not endorsed upon the back or margin of the mox’tgage, or of the x-ecord. A mere verbal consexxt to the sale is sufficient.
In Patrick v. Meserve, 18 N. H. 800, it is held that a sale of a chattel by a mortgagee, with the consent of the mortgagor, vests a good title in the purclxaser; and in Gage v. Whittier, 17 N. H. 312, it is expressly held, that in axx action of tx’over by a mox'tgagee for the mortgaged chattel', the defendant may show that it was sold by the mortgagor, and that the plaintiff, the mortgagee, assented by parol to the sale. Such assent, it was held, was sufficient with the sale to pass the title to the purchaser, he being iix possession. That seexxis to cover the whole ground of this case, and fully justifies the instructions that were given in this case on that point. This exception is overruled.
Upon the other question, the difficulty arises from confounding the burden of proof with the preponderance of the evidence. The question of the bux’den of proof is discussed iix Judge of Probate v. Stone, 44 N. H. 593. In that case it was held that, though the burdeix of proof might change many times in the course of the trial, the party asserting aix affirmative having the burden of proof oxx him so far as that issue is concerned, yet that the party who had the fix’st or px’imax’y burden of proof upon him was entitled to open and close. The burdexx of proof, as spoken of in that case, had no connection with the prepondei’ance of the evidence upoxx a given issue. The party wdiiclx must go ahead and make out a frima facie case upon a given issue, has the burden of px’oof upon that issue. But the party who has the burden of proof may xxot have the preponderance of the evidence on his side even oxi the same issue. The question as to the burden of px-oof arises, if at all, at the beginxxing of the trial of an issue; but the question of the preponderance of the evidence does not arise usually till the close of the trial of the issue, axxd generally not until the close of the evidence upon all the issues of the case.
In the case before us, it is evident that no question arose concerning the burden of proof, but the only question was as to the preponderance of the evidence. The evidence of the plaintiff’s assent to the sale went in with the other evidence, without any question or thought as to the burden of proof; but after the evidence is all in on all the issues, and when the judge charges the jury, the question arises as to the preponderance of the evidence, and the charge is or was intended to be, that the preponderance of the evidence must be with the plaintiff on both issues, — that is, that the plaintiff was more probably right upon all the evidence, upon both issues, in order to recover. No question was made about the plaintiff’s having a valid mortgage and the right to the possession of the hay, which was sufficient for him in the first instance. The defendant alleged that the plaintiff had relinquished his right of property and of possession by consenting to the sale of the hay to him by Gray, the mortgagor, and on this point the evidence was conflicting— no question about the burden of proof, but only about the preponderance of the evidence after it was all put in. If the plaintiff had assented to the sale of the hay, he could not recover; if he had not thus assented, he could recover. Which was most probable upon all the evidence? If the probabilities were against the plaintiff, he could not recover; if they were just even, in exact equilibrio, then the plaintiff cannot recover,, because he, being the plaintiff, is always bound to tip the scale in his favor before he can recover. The probabilities must therefore be in favor of the plaintiff on this question of consent, as well as on the question of the plaintiffs original right to the hay; and that is what was intended by the ruling in this case, — that the evidence must preponderate on the side of the plaintiff, so as to make it more probable that he did not assent to the sale than that he did, in order to recover. It would not seem that there could be any doubt upon that point. The verdict was for the defendant, and there must be
Judgment on the verdict.