Stall v. Meek

The opinion of the court was delivered, January 9th 1872, by Williams, J. The complaint of the charge in this case is well founded. Even if correct in the abstract, it was erroneous as applied to the evidence, and calculated to mislead the jury. The evidence clearly tended to show that the defendant was instructed to pay the plaintiff’s indebtedness to Braden out of the money he might receive on the note and accounts left with him for collection, and to hand the residue to the plaintiff’s wife; and if so, she was the plaintiff’s agent to receive the money, and the defendant’s declarations to her, if made as alleged, were made “ to his [183] constituted agent.” There was not a particle of evidence ten - ing to show that the alleged declarations were not communicated to the plaintiff. On the contrary, the reasonable inference is that they were; and, .besides, there was evidence from which it may be fairly inferred that the wife had informed the plaintiff of the defendant’s declaration that he had paid Braden. If not, why did the plaintiff, when served with the sci. fa. to show cause why execution should not issue, take out a subpoena for the defendant, for the purpose of proving the payment of the judgment, and why did he ask him if he had not a receipt from Braden ? It is true that the court did not in express terms charge the jury that there was no evidence that the wife was the plaintiff’s agent; and that anything said to the wife, because not shown to have been communicated to the plaintiff, would not constitute such a fraud as would prevent the running of the statute. But the jury may have readily inferred that this was the meaning of the court, from the language of the charge as applied to the evidence. If the court did not intend to be so understood, why charge that “ anything said to the wife of the plaintiff, or other persons, not communicated to the plaintiff, would not constitute such a fraud as would prevent the running of the statutean<j that “ the concealment must be practised on the plaintiff or his constituted agent ?” Is it not clearly implied by this language that there was no evidence that the wife was the agent of the plaintiff, or that the defendant’s declarations to her had been communicated to him ? Whether this was the meaning of the court or not, we think that the charge was susceptible of this construction, and that it was calculated to mislead the jury. The evidence tended to show that the wife was the plaintiff’s agent, and that the declarations alleged to have been made to her by the defendant were communicated to him. The case should have been submitted to the jury upon instructions applicable to the evidence, and not upon instructions applicable to a state of facts which the evidence did not tend to establish. Judgment reversed, and a venire faeias de novo awarded.