113 Mich. 502 | Mich. | 1897
This is an action upon a promissory note for $350 made by defendant to plaintiff as administrator. The execution of the note was not denied. The defenses were failure of consideration and duress.
It appears from the testimony that defendant in April, 1890, had borrowed money of deceased, who was his mother, and that at the time of the execution of this note,
The circuit judge charged the jury that the law favors compromises, and that if a bona ficle claim with a color of right is made by one party, honestly and in good faith believing it to be a valid claim, and the other party, disputing the amount of the claim, agrees upon a settlement,
After giving the instruction last above referred to, the court read a request of the defendant which covered the •same point precisely, in different language, and said: “I think I will decline it. It is good law, but I do not think it necessary for that language.” This is complained of. We do not think this could have worked any injury to the defendant, as it was no more than saying that the court
Defendant and his wife testified that on or about the 5th of April, 1891, defendant’s wife let him have $208, which he took from the house, and returned with the note of $200. Defendant testified that when he returned home he did not have the $208 in his possession, but only $2, and that he had the $200 note above referred to, and that he got the $200 note while he was away from home that day. Defendant preferred a request as follows: “The fact that on the 5th of April, 1891, defendant took $208 from his house, and returned, after being absent some hours, without the money and with the $200 note, is evidence of its payment. ” The court gave this instruction, adding: ‘ ‘ That is true. If in fact you believe that he did so, it would certainly be evidence for you to consider as to the correctness of that fact.” It is contended that’ this modification, “if in fact you believe that he did so,” was strongly calling in question the undisputed testimony of the witnesses. But the testimony was not undisputed. It is in conflict with the theory of the plaintiff and with the testimony of plaintiff’s witnesses, which tended to show that the note which was produced at the conference in 1895 was freshly written, and which defendant testified was the same note which he had brought home April 5, 1891. The modification of this instruction was not only proper, but necessary. The request preferred by defendant assumed the statement embodied in it to be a fact established. It would have been error to give the instruction in the form presented.
Two requests were presented in which the judge was asked to state to the jury that certain facts testified to by defendant’s wife were undisputed, and that this testimony should be accepted by the jury as true. It is only in a case where the testimony of a witness is not only unopposed by direct evidence, but where it is not in conflict with the just and proper inferences to be'drawn from other facts proved in the case, that it is proper for the
It appeared in the testimony of defendant that the two notes produced by him in the interview were destroyed. On cross-examination he was asked if he destroyed any other notes at the time these were destroyed. Error is assigned on the ruling admitting this testimony. We think it was proper cross-examination. Defendant had testified that he destroyed the two notes for the reason that Judge Brucker had said to him, “Do you know your brothers could put you through for that?” referring to the retracing of the notes, as he claims. We think it was competent to show that other notes, which he had no reason to suppose could be used as evidence against him, were destroyed at the same time, as bearing upon the probability of the reason he had assigned for destroying those in question being the true one.
The wife of defendant, was asked to state what defendant said at the time he took the money (the $208) and left the house. The evident purpose was to show a declaration that he was going to pay the money to his mother. It is contended that it is part of the res gestee. But it was no more than the declaration of a purpose. It did not characterize an act shown to have been performed, but was an assertion of a purpose to perform an act. Bes gestos are circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate it. We think the testimony was not admissible. See Pinney v. Jones, 64 Conn. 545 (42
We think no error was committed to the prejudice of defendant, and the judgment will be affirmed.