Weeks v. Barron, 38 Vt. 420

Weeks v. Barron

38 Vt. 420 | Vt. | 1866

The opinion of the court was delivered by

Kellogg, J.

This case has been heard on the-defendant’s petition for a new trial, and also on his exceptions taken on the trial in the county court. The cause assigned in the petition is that the verdict was against the weight of the evidence. The points which were controverted on the trial were, (1,) whether the chair which was the subject of the action was in the defendant’s possession when *423•it was demanded of him by the plaintiff or his agent, and (2,) whether the defendant, on such demand, refused to deliver it up. On both points there was conflicting testimony, from which it was for the jury to draw their own conclusions. The jury saw and heard the witnesses, and observed their appearance and manner in testifying, and had a much more favorable opportunity to judge of the credit and weight which should be given to the testimony of witnesses than persons who were not present at the trial. If the verdict can be supported upon any rational view of the' evidence, it should stand; and it never has been considered as a sufficient ground for a new trial that the verdict is merely against a preponderance of the testimony, or that the court from a consideration and examination of the testimony might have arrived at a different result. To warrant the setting aside of a verdict, it should appear to be manifestly and palpably wrong. It was well said by Tindal, Ch. J., in Mellin v. Taylor, 3 Bingh. N. C. 109, that “the general rule, under'such circumstances, is that the verdict, once found, shall stand ; the setting it aside is the exception, and ought to be an exception of rare and singular occurrence.” On the trial, the jury were called on to consider the appearance and credibility of witnesses, to make presumptions, and to draw inferences from testimony, and on all these points there might be a reasonable difference of opinion, and these matters were such as were peculiarly within the province of the jury as judges of-.the fact. 1 Graham & Waterman on New Trials, 380, et seq.; 3 ib. 1239, et seq.; Wendell v. Safford, Exec’r, 12 N. H. 171; Bulkley v. Waterman, 13 Conn. 327; Clark v. Whitaker et al., 19 Conn. 319. Applying thesa-prrhciples to the evidence in the case, we do not think that •this-ye^dict'' should be disturbed as being against evidence or the^eight of evi-: dence. The petition for a new trial is accordingly ^jsinissed virith'1' costs. r \ }.' '

The first point made on the defendant’s exceptions delates to--the' materiality of the testimony of Ballard, That testimony Vas offered to establish a basis for the introduction of the letter “marked A., as evidence; and, apart from its connection with that letter, would be clearly irrelevant. We think that the fair interpretation of the bill of exceptions is that the testimony and the letter were *424offered by the plaintiff in connection with each other, and as a single proposition ; and the question which would arise upon the bill of exceptions thus interpreted is, whether the testimony thus connected is material. The plaintiff had testified that he had made a personal demand of the defendant for the chair, and that the defendant had admitted to him that the chair was in his possession, but refused to deliver it up, claiming that he had a lien upon it for a claim which he had against Le Barron. The defendant denied this, and the plaintiff then offered the testimony of Ballard, who was his attorney, and this letter, which was received by Ballard in reply to one which he had addressed and sent to the defendant. This reply to the letter addressed by Ballard to the defendant, though written by the defendant’s clerk, was written in the name of the defendant. The evidence was material as bearing upon the issue of fact, made on the testimony, in respect to the alleged claim of a lien upon the chair made by the defendant; for the reply, in connection with the testimony of Ballard, had a tendency to corroborate the testimony which the plaintiff had given, or to show that the defendant had a claim against Le Barron, for the security of which the chair was detained. We therefore regard the testimony as being material. It might fairly have been argued that the defendant received Ballard’s letter, and directed the reply which was made by the clerk, notwithstanding the denial of the defendant that he ever received or saw Ballard’s letter. The only objection made by the defendant to the reception of the testimony being an objection that the testimony was not material, the defendant should be treated as having waived all other objections to it, and, after this objection was overruled, it was then too late for him to object to the admission of the letter on other grounds. It is not necessary to put the admissibility of the letter on the authority of the clerk to bind the defendant. It is sufficient for that purpose that it was in answer to a letter addressed to the defendant, and that the other testimony in the case furnished ground for an argument that the letter, although written by a clerk in the defendant’s employment, was in fact the act of the defendant, and directed by him.

The defendant excepted to the charge of the court that the testimony of Wires was evidence tending to show that the chair was in *425possession of the defendant at the time of the conversation between Wires and the defendant’s clerk. Wires testified, without objection from the defendant, that a few days prior to the demand of the chair by the plaintiff, he, at the plaintiff’s request, went to the defendant’s hotel for this chair, and that while there, but in the absence of the defendant, he, Wires, asked the defendant’s clerk, who had the general supervision and charge of the hotel, if the chair was there, at the defendant’s hotel, and the clerk replied that it was. The inquiry made by Wires of the clerk was one in respect to which the clerk had the means of knowledge from his employment in and connection with, the defendant’s business, in which he was then engaged; and when the reply of the clerk was called for, on the examination of Wires as a witness, and was received without objection on the part of the defendant, it was, as we think, too late to claim that the declarations of the clerk should not be treated as evidence bearing upon the issue on trial. The testimony of Wires related wholly to the declarations of the clerk, and it was too late for the defendant to claim that no effect should be given to those declarations, after the testimony was put in, and when he found that they were of a different character from what he had anticipated. The declarations were offered as the declarations of the defendant’s clerk, acting as the agent of the defendant, and in the course and scope of the business entrusted to him by the defendant. The answer, having been received without objection, became legitimate evidence; and, as a declaration in respect to a matter in regard to which the clerk had full means of knowledge, it had a tendency to show that the chair was at the defendant’s hotel when Wires called for it. We think that the instructions to the jury in respect to the tendency of these declarations were proper.

Judgment of the county court for the plaintiff affirmed.