56 N.H. 495 | N.H. | 1876
Lead Opinion
FROM HILLSBOROUGH CIRCUIT COURT. The instructions requested by the defendant were well enough, so far as they went, if there were any facts appearing in evidence to which they were applicable. Nothing appears the case to show that the plaintiff was put upon inquiry. It is expressly found that he had no knowledge of the arrangement between the defendant and his partner that neither was to give a note of the firm without the consent of the other. The case does find that in May, 1874, Gustav was indebted to the plaintiff for the use of his billiard tables and other things; but how it was at the time the note was given, December 10, 1873, or previously, is not found, nor are any facts stated from which it can be inferred.
No exception was taken to the instructions given, and I do not see but what they cover the whole ground. Hayward v. French, 12 Gray 453. The instruction that "the defendant would be liable, unless the plaintiff had notice, or knowledge, or sufficient means of knowledge, of the intended fraud," was, in effect, the same that the defendant requested. It was effect, instructing the jury that if the plaintiff knew that Gustav borrowed this money for his own private use, or had such notice from an the facts and circumstances as to put him upon inquiry, he could not recover.
Concurrence Opinion
The court did instruct the jury that the defendant would be liable, unless the plaintiff had notice, or knowledge, or sufficient means of knowledge, of the intended fraud. I am unable to see and substantial difference between this charge and the instructions asked for. If the plaintiff had notice, or knowledge, or sufficient means of knowledge, I think he must have been put upon his inquiry, and I do not now see how the defendant suffered by the substitution of the charge given by the court for that requested by the counsel.
Concurrence Opinion
The difference between the instruction given and that refused in this case, seems to be more verbal than real.
If one were to go into a nice examination of the terms employed, the instruction given wound seem to be as favorable, to say the least, to the defendant as that requested. It is possible to suppose that one may have the means of knowing a given fact, and still not know it, for the reason that he does not make use of the means of knowledge at his command, while one can hardly have reasonable ground to believe in the existence of a fact without both having and using some means of knowledge concerning it. But, without going into any subtleties, it seems to me the instruction given was sufficiently favorable to the defendant. It was right, and, upon the facts stated, was all that was called for by the case.
Exceptions overruled. *502
