Evidence — Intention. The question was as to the intention of the defendant at the time he bargained for the liquors. He testified that he then intended to pay for them, and on cross-examination the statement was drawn from him that he had always been willing to pay for them what they were reasonably worth. It was to contradict him in this statement that the plaintiff proposed to ask him about the interview with Cassidy, which took place after the commencement of this suit. Whether that question should have been allowed depends upon whether or not the statement of his willingness to pay, made at a time subsequent to the purchase, was relevant and material to the issue as to his intention at the time of the purchase; and it seems to me it was not. Suppose, at some time after the commencement of this suit, he had said, — I will never pay anything unless I am compelled to; or, I will pay one half the contract price: could it be contended that such declarations would be legally admissible upon the question of his intention at the time of the purchase? The offer was, to show that he failed to comply with a proposition from the plaintiffs to accept a certain sum (less than he said he had always been willing to pay) in satisfaction and discharge of their claim. I think this was inadmissible, on the ground that his willingness or unwillingness to pay, at a time subsequent to the transaction and after the suit was commenced, was immaterial. See Bell v. Woodward, 47 N.H. 539, 540.
Whether at the time of the purchase the defendant had, or believed he had, within his power the means to pay for the liquors, was certainly admissible Upon the question of his intention. Upon this ground, I think there was no error in receiving the evidence that he was preparing to enter into copartnership with his brother in the purchase, and that four thousand dollars was to be furnished by the brother towards the partnership funds. It was as competent to show that be had a reasonable expectation of being able to pay, as it would have been, on the other hand, to show, from the situation of his affairs, that he could have had no such reasonable expectation.
As to the petition in bankruptcy, it cannot be denied that its bearing was quite remote. The question was, Did the plaintiff Hovey agree with the defendant that he should retain the liquors, and sell them to the best advantage? On this point the defendant's testimony was one way, and that of the plaintiff's the other. The defendant, in giving the account of this alleged agreement, said the plaintiff gave as a reason why he did not want the liquors sent back to Boston, that he was afraid they would be seized for debt: this the plaintiff also denied. So far, I think, the evidence was relevant and material; it was a question which told the truth. Now, suppose the plaintiff had thereupon *Page 502 offered to prove that he was at that time possessed of ample means, and had not a creditor in the world: would not such evidence tend to show the improbability of his making such a remark, and also the improbability that he was unwilling to have the liquor sent back to Boston for the reason assigned? It seems to me it would; and I can see no substantial difference when the matter is reversed, and the defendant, to support his position and discredit that of the plaintiff, offers to show that the plaintiff had creditors, and was, in fact, insolvent. I cannot see that the fact of the liquors being partnership property makes any difference. The interest of one partner in the assets of the firm may be reached and applied to the payment of his individual debts. I am, upon the whole, inclined to hold that the verdict should not be set aside on account of the admission of the petition in bankruptcy.
The irrelevant question to Moore, whether he had failed in business, is said to have been admitted for the purpose of impeaching the witness. It may not be very apparent how it had that tendency; very good and very truthful men are doubtless sometimes overtaken by misfortune, and fail in business; but the question appears to have been allowed by the court in the exercise of a discretion which is not ordinarily the subject of exception or revision here.
The last exception was to the refusal of the court to charge the jury that the burden of proof, as to the agreement that the defendant might take and sell the liquors for what he could, alleged to have been made about the middle of September, was on the defendant.
I think this refusal was very clearly right. The action was trover. The plaintiffs must of course make out a sufficient title to maintain the suit, or fail. Any attack which the defendant made upon that title was a direct denial or impeachment of a proposition whereof the affirmative was on the plaintiffs all the way through. This new agreement was not in the way of confession and avoidance at all. It was only one way of denying very directly a material allegation in the plaintiff's writ. Benton v. Burbank,54 N.H. 538; Crawford v. Roberts, 54 N.H. 532. I am of opinion that the exceptions must all be overruled, and that there should be judgment on the verdict.
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