70 Me. 468 | Me. | 1880
One Wheeler owned the horse which was here replevied, executed a bill of sale of him to the plaintiff in which the consideration is stated to be $50, and afterwards sold him for $115 to defendant who claims that the plaintiff’s bill of sale, though absolute in its terms, was really intended by the parties to it as a mortgage, and so, not being recorded, is not valid as against a bona fide purchaser without notice. Whether, as against plaintiff’s claim that his purchase was an absolute one, parol evidence was admissible to show that the transaction between him and Wheeler was intended to be a mortgage, and thereby affect the written contract, was a question which perhaps might have been but was not raised in the case. •
We see no error in the proceedings or instructions.
Our statute does not prohibit the presiding judge from calling the attention of the jury to the questions of fact upon which they are to pass, and to the testimony that related to those questions.
That he has discretionary power to reopen a case and permit a party to present further testimony after the testimony has been declared closed and the argument for the opposite party has commenced was settled in McDonald v. Smith, 14 Maine, 99. Nor is the exercise of that power subject to revision on exceptions, whether the testimony thus presented has been inadvertently omitted, or the matters to which it relates have occurred, or have been first brought to the knowledge of the party after the case was closed. The plaintiff objects now that the testimony thus received if otherwise admissible, did not tend to contradict the scrivener, but he made no such objection at the trial, nor does it appear that he made any except a general objection to the reopening of the case and the reception of any testimony whatever.
If he had special objections to any portion of the testimony (or to the whole of it as not conflicting with the testimony it was offered to impeach) he should have raised them then. Not having done so, they are not available now according to the rule laid down in Longfellow v. Longfellow, 54 Maine, 245, and numerous other cases before and since. Moreover, the scrivener’s conversation with the defendant was to some extent inconsistent with the testimony he had given and therefore admissible. State v. Kingsbury, 58 Maine, 238.
Exceptions overruled.