Hunt v. Fish

By the Court, Gridley, J. We do not perceive any defect in the proof of the notice of protest to the defendant Taft. The residence of Taft, after his removal, was only one hundred rods [330] distant from his former residence ; and notwithstanding it was situated in another town, it would not follow that the notice was erroneously sent. That would depend on the fact whether he was accustomed to get his letters at the office to which the notice was directed. (Reid v. Payne, 16 John. 218.) It appears from the evidence' that after his removal, Taft lived at the distance of only half a mile from the post office in the town of Lee, while the post office in Annsville was situated at a distance of two miles and a half from his residence. There is no direct evidence to show where he did in fact receive his letters after his removal. But from the comparative distance of the two offices, and his custom while residing in Lee, it was a reasonable inference, for the referees to draw, that he continued to receive his letters at the post office at which he had been accustomed to get them, and where it was far more convenient for him than at Annsville. If this were not so, the fact was in the knowledge of the endorser, and he might have shown it. We think, therefore, that there is no reason to interfere with the finding of the referees on this point. The main question in the cause was whether Mr. Hunt was a bona fide holder of the notes, so as to exclude the defence offered, and which would have been good against the original holder and owner. The possession of the notes by Hunt doubtless raised a presumption that he was a bona fide holder for value paid, and without notice of the facts set up as a defence. That presumption, however, was not in point of fact a strong one; and was liable to be rebutted and overthrown by evidence of circumstances inconsistent with the fact of a bona fide holding. I am inclined to think that enough had been shown, when the defence was first offered to be proved, to repel the slight presumption arising from the mere possession of the papers, and that the referees erred in holding otherwise. This evidence was afterwards considerably strengthened by the testimony of Mr. Kirkland. Had the offer then been renewed, and if rejected, the defendants had rested upon this erroneous ruling of the referees, I am of the opinion that a new trial must of necessity have been granted. [331] The defendants, however, adopted a different course. They called Lewis Lawrence, the payee of the notes, who testified that Mr. Hunt was a bona fide holder of them without notice. This witness was doubtless strongly in the interest of the plaintiff, and had he been called by the plaintiff, his testimony would have been subject to much just criticism. The defendants have, however, made him their own witness, and must take his testimony as he has given it. Had the defendants not called this witness, they might have argued that the referees should have disregarded his testimony, if it had been inconsistent or improbable. But they cannot now do this. He has sworn that Mr. Hunt was a bona fide holder, and the defendants cannot be heard to insist that he is not to be believed. They had the right, if surprised by his testimony, to show by other witnesses that the facts were otherwise; but they could not impeach their own witness, either directly or indirectly. When the defendants had given this additional testimony, they renewed their offer to go into evidence of their defence to the notes. But the aspect of the case was then materially altered for the worse. They had themselves proved Mr. Hunt to be a bona fide holder of the notes, as the referees held ; and assuming the testimony of Mr. Lawrence to be true, they decided the question right. At all events, that was a question of fact which belonged to them to decide. They had a right to assume that all the testimony against the bona tides of Mr. Hunt, as a holder of the notes, had been given ; and if they were satisfied on that point, in favor of the plaintiff, their finding can no more be disturbed by this court, than their decision upon any controverted question of fact in the final determination of the cause. It is a familiar principle, that where upon the whole case, the court can see that justice has been done, an immaterial error of the court, in the progress of the trial, will not entitle the party against whom such error was committed, to a new trial. (3 Barbour’s Sup. Court Rep. 545.) The same principle has been also held applicable to a case arising on the report of referees. The rule may be thus illustrated. A party has rested his cause on evidence of the defendant’s hand-writing to a prom [332] issory note, which the court, on a motion for a nonsuit, erroneously holds to be sufficient. The defendant excepts; and then calls a witness to disprove the hand-writing, who unexpectedly testifies to its genuineness, and thus makes out a case for the plaintiff which he had failed to do by his own testimony. Now if the defendant should move for a new trial, on a case, for the refusal of the judge to nonsuit the plaintiff, he would fail, upon the ground that upon the testimony which he had hin>self given, the plaintiff was entitled to recover. So it may be said here, that by the testimony of Lawrence, which the defendants elected to give, the decision of the referees was on the whole right. Motion to set aside report, and for a new trial, denied.