Howard v. Holbrook

Bosworth, Ch. J. The instrument of March 8, 1853, signed by the testator, is, on its face, a valid contract. As an original undertaking or agreement, the point is free from difficulty; as an agreement within the statute of frauds, it is good on its face, according to the recent case of Miller agt. Cook, (22 How. Pr. R., 66.) The admission of the deposition of Norris is not an error authorizing a new trial. If the agreement, on its face, expressed sufficiently a consideration that made it obligatory, proof of the actual consideration could not possibly prejudice the defendants. The charge of the judge is not given. It should be presumed to have related to the only question of fact that could be properly submitted, viz : whether the witness Keeler actually presented the bond (No. 17) to the testator, and he refused to redeem it, stating that “ he had not got the money,” &c. &c. The witness is quite confident that he presented it on the 1th of March, 1855, at the testator’s place of business, he not being there and being rep [66] resented to be out of town; that he subsequently called and found there a person who answered to that name, who acknowledged the guaranty to be his, but said that he could not redeem it, and who, on being told that the witness had been there twice before, said that he had been out of town. If the evidence was insufficient to be submitted to a jury, a new trial should be granted, as the court refused to dismiss the complaint, and the defendants excepted. It may be that a tender to the testator personally was indispensable, even though he was out of town, if within the state. (Smith agt. Smith, 2 Hill R. 351; Watson agt. Hetherrington, 1 Car. & H. R., 36.) But as the testator did not refuse to pay, on the ground that no tender had been made to him personally on the 7th of March, and as he admitted that he had been out of town, and did not suggest that he had not nevertheless been out of the state, I think the evidence is prima facie sufficient to show that his absence was conceded to be such as made a tender, to him personally, excusable. There was no attempt made by the defendants to prove that he was not out of town, or was within the state. Evidence that on two or three occasions, when the witness first called at the testator’s place of business, he was told that the testator was out of town, and that there was no one there to represent him, and that subsequently he found there a person answering to the name, who said he was the man and admitted the contract to be his, but refused to pay the money, is competent to go to a jury upon the question of his identity, and sufficient to uphold a verdict in the absence of, all evidence tending to raise any suspicion of mistake or oollusion. (Roden agt. Henry Thomas Hyde, 4 Ad. & El. N. S. R., 626; Mineta agt. Wolfhausen, 2 C. & K. R., 744; Hunt agt. Maybee, 3 Seld. R., 270, 271; Hatcher agt. Rocheleau, 18 N. Y. R., 86, 92-96.) The fact asserted by the witness, that he called at Mr. [67] Holbrook’s place of business, was not attempted to be discredited by any cross-examination of the witness, or any other evidence tending or apparently designed to throw any doubt upon its accuracy. Under such circumstances, and in the absence of all evidence tending to excite a suspicion that the witness did not see Mr. Holbrook, but on the contrary saw and conversed with some other person, I think the evidence sufficient to warrant the inference that he saw Mr. Holbrook, and had with him the conversation testified to. I think the judgment should be affirmed. Moncrief, J., concurred.