Weed v. Carpenter

10 Wend. 403 | N.Y. Sup. Ct. | 1833

By the Court,

Nelson, J.

We are of opinion that the testimony in this case should have been submitted to the jury upon the question of fact whether Viele had authority from the defendant to put his name up on the note in question as endorser. It is competent to establish the fact by circumstances as well as by direct proof; and it may be done either by shewing an authority before the act is done, or by subsequent ratification. If there is any evidence tending to the proof of the fact, the weight of it, under all the circumstances of the case, belongs to the jury to determine, under a proper direction from the court. That there is some evidence leading. to such a conclusion must be admitted; the note in question fell due on the 4th September, 1827, and notice of protest was duly sent per mail to the defendant, which no doubt he received, charging him as endorser; on the 20th October he was arrested, and endorsed his appearance on a writ; he suffered a default for not pleading to be entered against him, and no steps were taken to defend the suit until Viele absconded, about the 1st of January. The facts in relation to this note, together with the other circumstances detailed in the case, I apprehend, will admit of but one explanation; and whether that is sufficient or satisfactory, it will be for the jury to determine, upon a view of the whole case. The explanation referred to is, that the defendant was the brother-in-law of Viele, and that his conduct was influenced by considerations of regard to the character and feelings of the family. Without this view of the case, we should consider the facts detailed in it conclusive upon a juiy; it may or may not be sufficient to rebut the otherwise strong inference of authority. A jury will no doubt give to it its just influence in weighing all the evidence ; a jury from the vicinage is the most competent, and the only competent tribunal to dispose of the case, so far as the facts are involved.

New trial granted.