Beck v. Snyder

Pee Ctjeiam, The testimony referred to by the learned judge in that part of his charge recited in the first specification, was to the effect that in an interview with Mrs. Shoemaker, after her husband’s death and before letters of administration were granted to defendants, the plaintiffs’ intestate, Thomas Beck, admitted that payments on account of the note in question had been made by Mr. Shoemaker in his lifetime; that he, Mr. Beck, agreed to apply, as credits on the notes, certain sums for which [238] lie was liable on account of bills, relating to the farm owned by him and Mr. Shoemaker as tenants in common, some of which bills had been paid by Mr. Shoemaker, and others by Mrs. Shoemaker after his decease; that after allowing these credits for his eontributive share of the farm bills thus paid by Mr. and Mrs. Shoemaker, plaintiffs’ intestate claimed there was still due on the note a small balance of sixty-seven cents, which was then and there paid by Mrs. Shoemaker and accepted by him in full settlement and discharge of the note. The defendants’ sole contention was that by allowance of said credits, some of which were for payments made by Mrs. Shoemaker after her husband’s death, and by payment of the small balance claimed, the note was fully settled and paid; and, in support of that position, they relied on the testimony referred to. It presented a question of fact which was for the exclusive consideration of the jury, and they doubtless understood it correctly. There was no allegation, nor was there any attempt to prove payment and acceptance, from the maker of the note or his administrator, of any smaller sum than the amount actually due, in satisfaction of the note. Referring to the testimony as to what took place at the interview between Mrs. Shoemaker and defendants’ intestate, the learned judge rightly said to the jury: “If this testimony is true, then this note was then and there settled and plaintiffs would not be entitled to recover in this action. If you do not believe this to be true, and you believe there was no such conversation — no such settlement, or that the note then and there referred to was not this note, but some other note, and that the settlement then and there made was not the settlement of this indebtedness, but a settlement of some other matter, then your verdict will be for the plaintiffs for whatever you find due on the note.” This was substantially the only question submitted to the jury. There was no other question in the case. In view therefore of the testimony on which defendants relied, the charge cannot be regarded as misleading. In saying, by way of illustration, what is complained of in the second specification, the learned judge doubtless had in mind the facts of the case, as indicated by the defendants’ testimony, and meant a settlement, not with the maker of a note, but with a third party — such a settlement as that shown to have taken place between plaintiffs’ intestate [239] and Mrs. Shoemaker after her husband’s death. There is nothing else in the ease to which the language complained of could possibly apply. Considered as a whole, there is no substantial error in the charge. Judgment affirmed.