Waddingham v. Hulett

| Mo. | Apr 15, 1887

Brace, J.

This was an action commenced by attachment in the circuit court of Audrain county. The petition contained two counts, the first upon an account for money loaned, money had and received, laid out and expended, and for labor performed, amounting to the sum of §3,505.16; the second was for board furnished defendant, and two boys, from November, 1868, to the year, 1880, at twenty dollars per month, respectively, amounting in the aggregate to the sum of §7,925. The defendant filed a plea in abatement, but afterwards withdrew the same. Judgment was rendered sustaining the writ, and defendant pleaded to the merits. The answer contained (1) a general denial; (2) a plea of accord and satisfaction ; (3) a set-off for work and labor, and for money had and received, and for money paid, amounting in the aggregate to the sum of $2,781.90; (4) a set-off for the amount of a promissory note and interest executed by plaintiff to defendant dated August, 1871, for the sum .of thirty-one hundred dollars, with interest on same from date payable annually at the rate of six per cent, per annum. The plaintiff replied, denying the new matter set up in the answer.

The case was sent to a referee, who tools the evidence and stated an account between the parties, and made his report. The defendant filed exceptions to the report, and his exception to the finding of the referee upon the defence set up in the first special plea of the defendant was sustained, and the case continued to the next term of the court; at the next term the following issue was framed and submitted to a jury: “ Was there a settlement between plaintiff and defendant __ on the twentieth day of January, 1882, in which the account sued on by plaintiff and itemized in his petition was settled? Which defendant asserts and plaintiff denies.” This issue was found for the defendant, and thereupon judgment was rendered in his favor, from which, after an unsuccessful effort for a new trial, he appeals to this court.

The only matters complained of as error arise in the action of the court on the trial of this issue. The issue framed left out the cause of action in the second count of plaintiff’s petition, and defendant’s set-off for $2,781.90 disappears, so far as the evidence in.the case goes, and reappears again only in the instruction given by the court for the defendant. On the trial of the issue, each of the parties testified in his own behalf, and each admitted that on the twentieth day of January, 1882, there was a settlement made between them, in which defendant surrendered- to plaintiff a note of plaintiff for $3,074.69, dated August, 1871, bearing interest at the-rate of six per cent, per annum from date, and plaintiff executed a deed to defendant for one hundred and sixty acres of land. Besides the parties themselves there were present when the terms of the settlement were agreed upon, only Prank and John Hulett. The defendant and the said Prank and John Hulett testified positively, that the items charged for in plaintiff ’ s petition were included in the settlement; that the plaintiff agreed to make a deed to the land, and give up and release all his demands against the defendant for the- note. On the other hand, the plaintiff testified that the items charged for in his petition were not included in the settlement, and that he was only to give the land for the note. If the version given by the defendant and his two witnesses of the settlement was true, the verdict of the jury on the issue must have been for the defendant; if that of the plaintiff was true it must have been for him, so that the result must have depended largely upon the credit given by the jury to the evidence of these witnesses.

To impeach the credit of the witnesses, Frank and John Hulett, the plaintiff introduced evidence of the general reputation of said witnesses in Vermont, where they formerly lived, and in Mexico where they resided some time before, and at the time the case was tried, and offered to read in evidence the depositions of seven witnesses residing in Detroit, Michigan, as to the general reputation of these witnesses, in Detroit, where they were on a visit of about three months in the year, 1883. The court refused to permit the depositions to be read, and we find no error in this ruling. The general reputation of a witness among his neighbors is the only legitimate subject of inquiry for the purpose of impeaching his credit upon the ground that his character is such that his evidence is not worthy of credit; neighbors are those who dwell near each other; and he who would testify as to the general reputation of a witness must be able to state what is generally said of the person by those among whom he dwells, or with whom, he is chiefly conversant. 1 Greenl. Evid., sec. 461; Warlick v. Peterson, 58 Mo. 408" court="Mo." date_filed="1874-10-15" href="https://app.midpage.ai/document/warlick-v-peterson-8004793?utm_source=webapp" opinion_id="8004793">58 Mo. 408. Not by those among or with whom he may have sojourned for a brief period, and who have had neither time nor opportunity to test his conduct, acts, or declarations, or to form a correct estimate of either. A man’s character is tobe judged by the general tenor and current of his life and not by a. mere episode in it.

Plaintiff offered to read in evidence a deed from the defendant, Tobias Hulett, to the said witnesses, Frank and John Hulett, whereby he conveyed to them, on the next day after the settlement of the twentieth of January, all his interest in all his lands, being the same lands attached and now held under attachment proceedings in this suit, also the affidavit, the writ and return, and the judgment in the attachment, and promised to show that said deed was voluntary, and without consideration. The defendant objected, and the court sustained his objection, and refused to permit the papers-to be read. In this we think the court committed error, as it was competent for the plaintiff to affect the credit of defendant’s two most important witnesses, by showing that they had an interest in the result of the suit. This-evidence would have shown that they had a direct interest in such result, since a verdict for the defendant discharged the lands to which they held the legal title from all liability to being subjected to the plaintiff’s debt, whilst a verdict for the plaintiff would be followed by a judgment that would be a link in the chain of evidence for plaintiff in a suit he might bring against them to set aside their deed. They thus had an interest adverse to plaintiff in the result of the issue on trial, and in the record of the case, a fact very important to be shown for the plaintiff, in the condition in which his case was at this stage of the trial; for, as it then stood, one interested and'two apparently disinterested witnesses had contradicted his version of the settlement, when, if this-evidence had been admitted, his case would have presented the very different phase to the jury, of one interested witness, for himself, being contradicted by three other interested witnesses, for the defendant; besides, the evidence, unexplained, would have tended, in some degree, to sustain plaintiff’s version of the settlement; for this purpose, however, not much importance is- to be attached to it; for the other, it was important and material testimony, in the case, and should have been admitted.

The instructions given are unexceptionable, except two given for the defendant, and as the same error is found in each of them, it will only be necessary to notice the following:

.“2. If the jury should believe, from the evidence in the case, that the agreement between the parties was that all the matters between them, including their mutual accounts, as shown in the pleadings, as well as in the suit upon the note offered in evidence, were to be, and were, settled and cancelled by the conveyance of the one hundred and sixty acres of land mentioned in the deed, then the issue joined between the parties must be answered in the affirmative, and the verdict will so find, and be for the defendant.”

This instruction is within the issue submitted, but goes beyond, and in so far as it does so, is unsustained by the evidence in the case. All the witnesses for defendant testified that the terms of the agreement were that plaintiff was to give the land and his account for the note in suit, which the defendant held on him. There was not a particle of evidence tending to show that the agreement was that the defendant was to give the note and Ms account for the land and plaintiff’s account. The instruction introduced a new factor, i. e., defendant’s account for $2,781.90, into the settlement, which is nowhere found in the evidence upen that subject, and was calculated to mislead the jury. The jury might well Pave considered a settlement reasonable by which defendant agreed to surrender a demand for $2,-781.90, which, to them, would have appeared unreasonable without that element in it, and thus their verdict be the result of taking into consideration a state of facts of which there was no proof, whatever.

Por the errors stated, this cause is reversed and remanded.

All concur.