Huntsman v. Nichols

Devens, J. Several exceptions have been taken to the rulings of the presiding judge, and the evidence admitted by him, which may be considered in their order. 1. The admission of evidence in rebuttal of the defendant’s case, which should more properly have been offered by the plaintiff in chief, was clearly within the discretion of the court, and the exceptions do not show that it was not thus admitted. The point is too well settled to require the citation of authorities. 2. Although only the authenticity of the note in suit was in issue, yet the business transactions between Fairbanks and the defendant had some bearing upon the probability of the indorsement having actually been made by the defendant, who had testified that there had been such transactions, and that he had indorsed notes for Fairbanks ; and it was competent for the court to permit Fairbanks to state that, in the course of the transactions between himself and the defendant, several notes had been indorsed for him by the defendant, including among them one corresponding in date and amount with that in suit. B. Fairbanks having stated that his business transactions, which included the giving of these various notes, were entered upon his books, the plaintiff was not permitted to prove what the entries therein were, but was rightly allowed to ask the defendant if these books were not in his possession, and if he had not examined them, and to argue upon his replies. E such books were in the possession of the defendant, it was competent for him to put them in evidence, if they tended to contradict the witness, and the fact that he did not do so was a proper subject of comment. 4. The question as to the authenticity of the signature of the defendant had been submitted to referees, but it was in dispute between the parties whether the decision of the referees was intended to settle and settled finally the liability of the defendant, so that there was no further claim upon him thereafter, or whether it settled only that the plaintiff should in the first [527] instance take np the note which was at a bank, not relinquishing thereby his remedy, if entitled to any, against the defendant whose name appeared as prior indorser. The ruling of the court upon this point was sufficiently favorable to the defendant, as the parties might have submitted the question simply with a view of determining which of them should first take up the note, and in such case the plaintiff would have fully complied with the award by taking it up and relieving the defendant from any danger of suit by the bank at its maturity, while he still retained his own right to sue the defendant upon it. Nor can it be successfully contended that even if the referees were ignorant that their decision was to be final, if the parties intended it to be so, it should now be so treated. In order that the referees should have decided the matter with due regard to the rights of both parties, it was necessary for them to have understood the issue submitted to them. 5. The testimony of one of the referees that “ he had no idea the reference was final ” was a statement only that he had not understood that he had rendered any decision upon the question in controversy which finally determined the rights of the parties. JExceptions overruled.