Cothran v. Collins

, Grover. J. The questions of law arising, upon the exceptions taken upon the trial, have already been disposed of by the court. The only question now before the court arises upon an appeal from an order of special term denying a motion of the plaintiff to set aside the verdict and [169] grant a new trial, upon the ground that the verdict was against the evidence. The question of fact litigated upon the trial was, whether the payment of the note by the defendant was made in good faith. I have carefully examined all the evidence bearing upon this point. The circumstances established by unquestioned evidence, tend strongly to show that it was not. The note, providing for the payment of semi-annual interest, although it had but twenty days to run, shows pretty clearly that it was then understood by the defendant that it would be retained by the plaintiff, and the defendant would not be called on for payment for some' considerable time. The anxiety shown by the defendant on several occasions, that the plaintiff should not transfer the note, and the satisfaction expressed by her at the note’s being left with the plaintiff’s mother while he was absent in the army, show a strong wish, at least, that the plaintiff should retain the note, and a desire on her part further to defer the payment. Knowledge by the defendant that the plaintiff was absent in the army, which is inferrible fairly from the evidence, at the time of the alleged transfer, is a pretty strong circumstance against the good faith of the defendant. The defendant’s testimony that a perfect stranger from Buffalo presents himself to her with the note, and at once tells her he has got it in such a way that if promptly paid he can throw off the interest, is another fact of the same nature. It mugt be borne in mind that the note was at this time past due, and there does not appear to have been any talk between the defendant and this stranger as to her ability and willingness at once to pay the note, before the stranger’s making this proposition. The fact that the note was stolen from the possession of the plaintiff’s mother, which no one from a perusal of the evidence can doubt, coupled with the opportunity of the defendant to take it, throws great doubt upon the Iona fides of the defendant in making the payment. This evi [170] dence is met by the defendant’s positive testimony that she did not steal the note, and had at the time of payment no knowledge or suspicion that it had been stolen, and that she made such payment in good faith. It was also shown upon the part of the defendant, that persons other than the defendant might have entered the room where the note was kept, and might have stolen it. I do not regard the fact of payment to the stranger, in presence of the defendant’s daughter, the form of which- was undoubtedly gone through, or procuring the note of $500, which was used in making such payment, as entitled to much weight. This would have been done upon the theory that the defendant herself abstracted the note, equally as though some other person without her knowledge or privity had done it. Upon the whole evidence, my impression is strong that the verdict was not in accordance with the real truth of the case. Yet I am not prepared to say that the case is so flagrant as to show passion, prejudice or inattention to their duty, on the part of the jury. There is the positive testimony of one witness in support of the verdict. The evidence against it is circumstantial, and although to my mind of a convincing character, it would be going further than any modern reported case authorizes, to set aside the verdict rendered. The order appealed from must be affirmed Daniels and Marvin, JJ., concurred.