6 Cow. 682 | N.Y. Sup. Ct. | 1827
Curia, per
The only matter in controversy between the parties, is the note of November 1823, for $2100,20, which purports to have been signed by Oliver Porter, the testator of the defendant, There seems to be no doubt of the genuineness of the signature. But it is contended by the defendant, either that
The real nature of this transaction is involved in great doubt and mystery: and 1 have seldom had occasion to examine a case, in which I found it so difficult to arrive at a satisfactory conclusion. The witnesses were very numerous, and their testimony extremely contradictory ; and the verdict of the jury must have been very essentially influenced by the general character and appearance of the witnesses, and their manner of testifying. Some of them were directly impeached; others were shown to have given various and contradictory accounts of the same transaction ; others stood in different degrees of relationship, pr connexion with the parties ; and may have been supposed, by the jury, to have testified under the influence of strong prepossessions.
In truth, the case is characterized by all the circumstances which render it peculiarly proper for the determination of a jury ; and, without intending to express any opinion as to the weight or preponderance of evidence, we have no hesitation in saying, that the verdict is not so clearly and unquestionably against it, as to justify us in setting it aside on that ground.
The motion for a new trial must, therefore, be denied, unless the judge erred in the admission or rejection of evidence ; or in his charge to the jury.
It does not appear, from the case, that any exception was taken upon the trial, to any decision of the judge, or to any opinion expressed by him in his charge to the jury. We should be justified, therefore, in refusing to entertain any question in relation to either. But it is not within the recollection of the court, that this objection was taken upon the argument. In a case of so much importance.
The first exception relates to the testimony of Simon Hyde. He was a witness for the defendant; and, in his direct examination, stated) that in November or December, 1823, Winchell shewed him a note, upon the back of which Was written Oliver Porter's note, for $2100 and some cents, which he believes to be the note in question. Winchell was then on his way to Connecticut, and the witness asked him how he came by such a note against Porter ? Winchell replied that he had some money, which he did not wish to carry with him to Connecticut; and he had left it with Porter, because he knew it would be safe, and that he would not use it.
Upon his cross examination, he was asked by the plaintiff’s counsel, if he had ever told any body that he had seen such a note, or that the plaintiff had such a note ? and if he had, when and whom ? The witness answered, that the first person to whom he mentioned it, was Porter, the testator ; that it was after Winchett's return from Connecticut ; but how long he could not tell. The counsel for the defendant then asked the witness what Porter said about the large note when he gave him the information ? This question was objected to by the plaintiff’s counsel, on the ground that the defendant could not give in evidence, the declarations of Porter in his own favor ; and the objection was sustained, and the question excluded by the judge. The decision of the judge was undoubtedly correct. The witness was not asked whether he had ever informed Porter that he had seen the note ? But the question was general, if he had informed any body, and whom 1 He was the defendant's witness ; and it is not to be supposed that the plaintiff knew what his answer would be* The question was not, therefore, put with the view or expectation of bringing home to Porter knowledge of the existence of the note ; but for the purpose, probably, of testing the accuracy of the witness, by compelling him to name the individuals to whom he had communicated the
The remaining objections are to the charge of the judge.
The next point taken, is, “ that the judge erred in charging the jury that the plaintiff could recover, if the note was given for any other consideration than the one the plaintiff had attempted to prove.”
The course taken upon the trial, was this : the plaintiff first proved the execution of the note ; and that he had worked for Porter for about a year, at $1 per day, and had paid and advanced several small sums of money for him. He then rested ; and the defendant proceeded to impeach the note, by proving the declarations of the plaintiff, about the time when the note was given, which went to show that he then claimed only a small sum as due from Porter. 2. By showing, that from Porter’s circumstances in life, and means of living, and habits of business and industry, it was extremely improbable that he could have contracted so large a debt. That the productions of his farm were nearly, if not quite sufficient to support his family ; and that he studiously avoided contracting debts; and that his representatives found no money among his effects af
The defendant then rested ; and the plain tiff called witnesses to prove that this note had been recognized and admitted by Porter. That it was composed of several smaller notes, one of $500, one of $450, and several others, the amounts of which were not recollected by the witness; and $450 in cash; and a book account, &c. That he repeatedly declared that he owed the plaintiff money, and offered his farm for sale ; and demanded $2000 down ; and then told the plaintiff, he being present, that if he sold his farm he would pay him. On other occasions, he declared he owed the plaintiff a great deal of money, as much as his farm was worth; and that he could not pay him without selling his farm.
Thus, the effort on the part of the plaintiff, was, to sustain the note, by proving an actual pecuniary consideration for it; either by express proof of that fact, or by implication, from the acknowledgment and recognition of the note by Porter. He did not pretend that it was given for any other consideration; and all the evidence on his part was intended to repel and rebut the evidence given on the part of the defendant, the object of which was to show', either that the note was fraudulently obtained, or altered by the plaintiff; or if not, that it was given as a guaranty against the change of Porter's will. All the evidence as to the latter point, consisted in the proof of the plaintiff’s declarations and admissions. The plaintiff, of course, gave no evidence in support of that allegation.
Upon this state of the evidence, after the counsel for the defendant had submitted the written legal proposition to the judge, which has already been stated ; the plaintiff’s counsel also submitted a proposition, upon which they asked the judge to instruct the jury. It was, “ that if, from the facts in the case, the jury believed, that the plaintiff, having the will of Porter in his favor, was apprehensive
It appears to me, that this charge was calculated to mislead the jury. There was not a particle of evidence that the note was given upon the consideration mentioned in the plaintiff’s proposition, to wit: that Porter, having made his will in Winchell’s favor, and Winchell being apprehensive he would change it, was about to leave him ; and that Porter then, to induce him to remain and work for him as long as he lived, gave him the note in question. It will be perceived that the previous will had nothing to do with the consideration supposed. And all that relates to it might be expunged without affecting the legal character of the proposition. It is neither more nor less than this : that if Winchell agreed to live with, work for, and
But the judge also charged the jury that this consideration was supported by the evidence to be drawn from, the confessions of the plaintiff, as proved on the part of the defendant ; thus making the plaintiff’s own confessions and declarations evidence to support a consideration, totally different from that which he had endeavored, during the whole course of the trial, to prove was the true consideration ; and which he had produced witnesses to support by their oaths. If the consideration for this note was not entirely pecuniary, then Benjamin Shattuck, the principal witness for the plaintiff, was guilty of the most gross and deliberate perjury ; and must have been suborned by the plaintiff himself. Can a party be permitted to go to a jury upon two distinct and entirely contradictory and irreconcilable grounds ? Suppose the plaintiff had first proved that the note was given upon a pecuniary consideration; but apprehensive, from the evidence given by the opposite party, that his witnesses would not be credited, had then called another lot of witnesses, who testified that it was given upon the contract or agreement which has been supposed : in the first place, would he have been permitted to do it? and if he had been, should the jury have been instructed, that either of the considerations proved, would support the note ? Ought they not rather to have been charged, that the witnesses effectually destroyed each other; and that neither w'ere entitled to credit ? That the plaintiff, by taking two contradictory grounds, had deprived himself of the benefit of both ? Can the declarations of the plaintiff himself, when proved by the deféndant, be more available to the plaintiff than
Under these circumstances, the case appears to me to bear a strong analogy in principle to that class of cases in which it has been held, that, where the consideration is set forth in a written contract, evidence to show that a greater or different consideration was intended, is inadmissible. (1 John. 139. 3 John. 506. 7 John. 341. 2 W. Bl. 1249.) That rule, it is true, is founded on the established doctrine, that a written contract cannot be contradicted or varied by parol. But so far as that doctrine has any foundation in moral principle, independent of considerations of public policy, it is this: that a party shall be concluded by his own solemn declarations, and shall not be permitted to prove that what he has once declared in writing was the sole consideration was not so. With how much more force does the principle apply to a case, where that declaration is made by the oaths of moral and responsible beings, in the presence of God and man, swearing by the procurement, and at the instigation of the party himself ; and where the contradictory evidence consists of his own declarations and confessions ? To permit those declarations under such circumstances to be used in this way, appears to me to be subversive of all morals.
In this respect, therefore, we think the judge erred; and that a new trial must be granted.
New trial granted.