Smith v. Woods

3 Vt. 485 | Vt. | 1831

Hutchinson, C. J.,

pronounced the opinion of the Court. — • We will first dispose of the objecton to the deposition of Goodall. This deposition was taken without notice to the opposite party, and taken to be used at June term ; and was filed with the clerk, but not so many as thirty days previous to said term. The action layover from June to December term,and this deposition remained on file; it was then admitted to be read,though objected toby the defendant. This filing of the deposition is not at all within the statute in reference to the June term of the court. It was not within the letter of the statute, in reference to the December term following : but for this term, its filing was perfectly within the object and meaning of the statute. The evils that existed before the statute were, that a deposition might be taken without notice, and presented and read on trial; and the opposite party have no possible opportunity to cross examine the witness, or procure him to attend court, and testify on the stand, or to procure the attendance of witnesses, acquainted with the deponent, and who would impeach his character for truth. The statute remedy for these evils is, that the deposition shall not be read, when thus taken without notice, unless filed, and lodged with the clerk and open for the inspection of both parties, thirty days before the term, at which it is taken to be used. This would enable the opposite party to prepare to meet the deposition in any of the ways allowed by law. He might give notice, and take the deposition of the same witness, that may operate as a cross examination, or procure him to attend in person. This statute regulation answers a valuable purpose,also,for the party who wishes to use it. If there is any defect in the certificate of the caption, he can know it thirty days before court, and have time to prepare his testimony anew. With propriety, also, may the deposition bear more weight, when the opposite party has this opportunity to impeach, or otherwise meet it, than when his first notice of it is its production on trial. Now all these objects are as fully attained, and perhaps more so, by the deposition’s being on file six or eight months, as if it were there thirty days only. We consider, that there was no error in admitting this deposition.

The only remaining questions are, whether the court correctly admitted parol testimony to show, who was the actual owner of these notes, notwithstanding the writings of John Scott, and the notes being made payable to the defendant; and whether the instructions given the jury were correct. The bare statement of the case forces to a decision, that the parol evidence was correctly admitted ; otherwise, an agent would forever screen himself from liability to any one, by taking notes to himself, which belonged td his employer. We know of no law against proving, by parol, á trust with regard to personal property, or personal agencies, or personal securities, indeed, all trusts, except those concerning real estates, affected by restraining statutes. This testimony does not contradict the writings at all, as suggested by defendant’s counsel. In reference to a suit upon the notes, they speak for themselves, and must be sued in the name of the nominal payee, or legal assignee ; and this cannot be varied by parol testimony. But a person owning a note, not payable to himself, nor indorsed to him, if it is converted by another, may maintain trover for it, in his own name, as well as if it were payable to him. He must give it a true description ; but alleging, and proving, himself to be the owner, gives him the cause of action in his own name. Just so, if defendant has received, and has in his possession, notes payable to himself or any one else, parol evidence is admissible to prove, that he received them as bailiff of the plaintiff; and such evidence will support the action of account as bailiff.

Upon the same principle, parol evidence is admissible to show, that the demand, in favor of Scott against Andy L. Smith, was equitably a demand of the present plaintiff, but made out and forwarded in the name of Scott, her father, as the most prudent and efficacious method of securing and collecting it; yet entirely for her benefit. Scott, having no claim against Andy L. Smith, which he supposed legal, or which he was disposed to set up against him, for he intended what he had done for his daughter as a gift to lior, yet he was willing to become her trustee, and let his name be used for her benefit.

These fiicts may as well be proved by parol, as any other facts whatever.

This brings us to the consideration of the instructions given to the jury. Here, we may observe in the outset, that, though the notes, which are the object of this suit; are made payable to the defendant, and are in his possession, he has no pretence of owning them, any farther than the amount of his lien for his expenditures and services in the business of his agency. He does not pretend to have gone to the westward to secure this debt for himself; but to have gone as agent for some person. His lien we are disposed to protect. Whoever would now claim that he acted as their agent in this transaction, must admit his lien upon these securities for his reasonable compensation. Had the defendant been willing, upon satisfaction of this lien, to deliver over the residue of these securities and money, and assign them without recourse, that would have been all that could have been required by any one claiming to be owner. But the case shows that he refused to deliver them up, without predicating any excuse upon his lien.

The defence before the jury, in this case, consisted chiefly in a denial of the plaintiff’s right to demand, and receive this property. It is urged, that the defendant, if liable at all, is liable to Scott’s representatives; for he acted in-. .Scott’s name, and by virtue of a power of attorney from him : and the plaintiff was then a feme covert, and could make no bailiff.

The testimony, which we have now decided was correctly admitted, shows that Scott had no interest in the matter 5 and even entertained doubts of the propriety of shaping the writings so as to sanction a pursuit in his name. To this, however, he assented, affirming that he had no interest in it; that it was all for his daughter, the plaintiff. He has since died, leaving no account or writing, which intimates any claim of his to this property. The assertions of this defendant, and of Andy L. Smith, tend to show, that the plaintiff, and not Scott, was the beneficial owner of this property. As to the plaintiff’s being then feme covert, and destitute of power to make a contract, which- would constitute the defendant her bailiff, this presents a difficulty more plausible than substantial. The defendant did not urge this objection, when he undertook the business, which terminated in the procurement of these notes. And these notes were executed On the express terms, that they were to be of no force, till the plain*tiff should be rid of her coverture, by obtaining a bill of divorce from said Andy L. Smith ; and all this with the understanding of all parties, that these notes would then be for her benefit. She obtained the divorce, and became able to contract, and appoint a bailiff. She then affirms her former proceedings, and continues the defendant her bailiff, and as such he receives the notes from h¡m i0 whom they were before delivered as an escrow, to await this very event of her divorce. Therefore, though the plaintiff was a. Jeme covert, when the notes were written and signed as an escrow, that difficulty was over, before the notes had any binding force upon the signers, and before the defendant received them into his custody. If the jury found the facts thus, as they probably might, the plaintiff was the substantial owner of these notes ; and the defendant received them in trust for her, and was her bailiff, and ought to account. Such were the instructions to the jury, upon this point. But, upon the question of Scott’s interest, the instructions were as contended by the defendant, that the plaintiff could not recover, if Scott was sole owner, or owned jointly with the plaintiff; that, in the last case, the plaintiff must resort to chancery.

J. Mattocks, for defendant. Burbank & Marsh, for plaintiff.

The judgement of the county court is affirmed; and auditors must be appointed to take the account. These auditors must consider, that the defendant had a lien upon the notes first payable, for his reasonable cost and charges. They must not consider, that any particular bargain, made by the plaintiff during her coverture, for any particular sum as a compensation, would now be binding upon her; nor would it in chancery. But she must be considered as having contracted with the defendant to transact this business for a reasonable compensation.