Evans v. Barnett

Spruance, J.: The only question before us is as to whether or not the variance in the time of the conversation on or about the 29th of July, to which McCabe’s attention was directed, and the time of the conversation as fixed by this witness on the 18th of July, is sufficient to prevent the witness answering the question now propounded. If McCabe had denied that he had had any conversation with this witness on or about the 29th of July, or if there was any doubt that his mind had been directed to that conversation, whether eleven days before or eleven days after, it might present a different question. But the question put to him and which he answered by saying that he had had a conversation and 'explained the details of the same, does seem to have directed his attention to a conversation with this witness; and, after all, the important question to determine is, whether he was misled in any way. It appears from his answer that he had no doubt about having had a conversation with this witness, and under the circumstances, we think this question can be put and the answer of the witness taken. (The above question was repeated to the witness, who answered “No sir; not that day, because I am on my oath here and want to tell the truth.” The witness was then asked if he had such a conversation with the defendant McCabe and if McCabe said the same thing to him on the Tuesday after the sale, namely, the 18th of July; to which the witness replied “That is what he said”.) Spruance, J., charging the jury: Gentlemen of the jury:—This is an appeal from a judgment of a Justice of the Peace. The action was brought by George L. Barnett, adminis [47] trator of Mary W. Barnett, deceased, against Stephen H. Evans, to recover certain money found in the drawer of a table purchased by said defendant at a sale of the household goods of said deceased. It appears from the uncontradicted evidence before you that the said Mary W. Barnett, the grandmother of the said George L. Barnett, an aged woman living alone in Millville in this county, died in the latter part of June 1902; and that the said administrator had a public sale of her effects on the 15th of July, 1902; and that at said sale the said defendant, Stephen H. Evans, purchased a table for the sum of $1.75; and that shortly after said purchase, and before the removal of the table from the premises, there was found in a drawer of said table a pocketbook, containing money, which was there and then delivered to the said defendant Evans. The defendant claims that the only money in said pocketbook was one five dollar bill; while the plaintiff claims that the pocketbook contained four bills of ten dollars three of five dollars, one of two dollars, and one of one dollar, and a silver one-half dollar, making in all the sum of fifty-eight dollars and fifty cents. ■ The evidence is that at the time of the sale of the table neither Barnett, the plaintiff, nor his auctioneer, nor Evans the defendant, knew or had any reason to believe that there was any money of other thing of value in the table—and therefore the sale of the pocket-book and its contents was not and could not have been within the contemplation of the parties. Under those circumstances the sale passed to Evans no right or title to the pocket-book and its contents—it being conceded by the defendant that this money was the property of the said Mary W. Barnett at the time of her death, her administrator, George L. Barnett was and is entitled to receive and hold or dispose of the same as a part of her estate. After the pocket-book was found, the plaintiff made demand on the defendant for the money contained therein, but was refused, and this action was thereupon brought for the recovery of the same. [48] Your verdict should be in favor of the plaintiff for the sum which you shall find from the evidence was in the pocket-book when found and delivered to the defendant. As to the amount of money found in said pocket-book the evidence is conflicting. You should reconcile such conflicting evidence if you can do so, but if you cannot reconcile it you should give credit to such of it as is worthy of credit, and reject such of it as is not worthy of credit. In doing this you should have regard to the interest of the witnesses, their opportunity to know of that of which they have testified, their apparent fairness or bias, and all other circumstances which may aid you in determining the weight which should be given to their testimony. Your verdict should be in favor of the plaintiff for at least $5 with interest—as the defendant testified before you that he found that sum in the pocket-book—and if you are satisfied from the evidence that the amount was a larger sum, your verdict should be for the plaintiff for such sum, not exceeding $58.50, together with interest from July 15, 1902, the day when ■the money came into the hands of the defendant. Verdict for plaintiff for $71.55.