Fullam v. Rose

Opinion by Mr. Chief Justice Sterrett, This action, brought by the executor of Luke Otis, is on a sealed instrument, executed by the defendant June 23, 1886, of which the following is a copy: “ Know all men by these presents that I, Anna Maria Rose, wife of Michael Rose, do hereby acknowledge that I have in my hands the sum of* one thousand dollars belonging to my brother Luke Otis, he having deposited the same with me for safe keeping, which moneys are payable to him or his heirs or assigns on demand at any time.” In his statement, plaintiff avers that on said date defendant received from her brother $1,000, and thereupon executed said acknowledgment, which was “in the possession of said Luke Otis at the time of his death and now in the possession of plaintiff; ” that as executor of said Otis he demanded payment of said sum, which was refused. The pleas were non assumpsit, payment with leave and coverture, on all of which issue was joined. On the trial plaintiff gave in evidence the paper in suit, his letters of administration, etc., and rested. To maintain the issue on her part, the defendant introduced testimony tending to prove that on January 10, 1887, she sent for her brother and returned to him the $1,000 referred to, and, in addition thereto, gave him $25.00, which he at first refused to take; that she then asked for the paper she had given him, and he replied it made no difference between them; that he had torn it up or would tear it up; that defendant’s husband then drew a receipt which was signed, and alleged to have been afterwards lost. It was not produced at the trial, but there was some testimony tending to show that shortly after it had been given it was seen by one or two of the witnesses. It is unnecessary to refer specially to the testimony tending to prove payment of the $1,000 in con [54] troversy, and circumstances connected therewith, or to other facts and circumstances, testified to by defendant’s witnesses, tending to corroborate the direct evidence of payment. It is sufficient to say that the testimony, if believed by the jury, was quite sufficient to warrant a verdict in favor of defendant. For the purpose of further corroboration, defendant offered in evidence the inventory and appraisement filed by plaintiff as-executor of Luke O.tis for the purpose of showing that the claim in suit was omitted therefrom. Also, a certified copy of the adjudication of plaintiff’s account as said executor, for the purpose of showing that defendant was a creditor of the estate and a distributee under said adjudication, and that no claim was made against her, in any form, on the paper in suit. These offers were both objected to by plaintiff and excluded by the court. This we think was clear error. The omission of the claim in suit from the inventory was a circumstance, the benefit of which the defendant was entitled to. If unexplained, it might, in connection with other testimony, have an important bearing on the question at issue. The adjudication of plaintiff’s account and the facts connected therewith appear to be quite pertinent to the defence. The former would have shown that a claim, founded on a judgment note signed bj plaintiff’s testator, dated July 10, 1890, for $1,500, payable one year after date, with interest from July 10, 1889, amounting in all to $1,665, was then presented by defendant and awarded to her out of the fund for distribution. It will be observed that this note is dated over three years after defendant alleges she paid to her brother the money claimed in this suit. If the latter was never paid, as plaintiff contends, and defendant was still indebted to her brother in 1890, it is difficult to understand why he should give her the judgment note for $1,500; and if the claim in suit was still outstanding at the time of the adjudication it is still more singular that plaintiff did not present it against her. It is no justification of the ruling complained of to say that these and other matters were susceptible of easy explanation. The proposed evidence should have been received, and then explanation, if any were needed and could be given, would have been in order. The fourth and fifth specifications are sustained. There is no merit in the first three specifications. A married woman who accepts money for safe-keeping, and refuses to re [55] turn it when demanded, cannot take refuge behind the plea of coverture. We also think the defendant’s case was unduty prejudiced by the manner in which it was submitted to the jury. It was not necessary to suggest that her defence depended solely on the veracity of her principal witness. Apparent inconsistencies and even contradictions in the testimony of witnesses do not necessarily imply willful falsehood. As a general rule it is the safer and better course to instruct the jury that it is their duty to reconcile such discrepancies and contradictions, if it can be fairly and satisfactorily done, — as it can in a great majority of cases. Failing in that, it is their duty, from all the light before them, to determine whether the witness should be believed by- them or not. In other words, it is the province of the jury to pass upon the credibility of witnesses who testify before them. Judgment reversed and a venire facias de novo awarded.