Wills & Fairbanks v. Judd

The opinion of the court was delivered by Redfield, Ch. J. I. That the plaintiff, Wills, was a competent witness, being fully released from all interest, and willing to give testimony, there can be no doubt. Notwithstanding any objection from others, who were interested in the suit, on the part of the party called, as a witness. This very point was decided, by this court, many years since, in the county of Caledonia, in the case of Silver, Pierce & Co. v. Lyman et al., which has since repieatedly been acted upon, in this court, and oftener, at the jury trials, in the county court, and which did not fail of being reported, as it is understood, from any doubt of its perfect soundness. Miner v. Downer, 20 Vt. 461, is to the same effect. II. The first assignee of the claim, Barber, would have been a competent witness, if released from all obligation to refund the money, borrowed of Huling, and for the security of which this demand had been assigned. But he does not seem to have been released, from this obligation by Huling, but only from the cost of this suit. And so long as he remained liable for the money borrowed, arid in discharge of which any money recovered in this suit would go, we do not see how he could be regarded as altogether divested of interest. It is probable Huling might rely chiefly upon the claim against defendant, but I notice nothing to preclude him from going against Barber, for the money loaned, [623] even after an absolute conveyance of all Barber’s interest in this claim, to him, unless he had stipulated to release Barber. III. But it does not appear with sufficient distinctness, to justify this court, in finding error, that the promise, which Barber testifies to, was upon any consideration, or' relied up<m, by him. All presumptions must now be in favor of the judgment below. And it does not clearly appear, that Barber had an interest to the full extent of the property assigned, or that he might not in fact have been a mere trustee and holding for the benefit of creditors, for the assignment might still have been upon valuable consideration. And certainly there is no pretence, that Barber acquired any more right to recover upon this account than the plaintiffs had, unless he was misled, by defendant’s promise. This could not have induced the original assignment, as it seems to have been altogether subsequent to the assignment. And there is nothing in the case to show, even probably, that Barber relied upon this promise, after it was made, and was thereby misled, so that upon both grounds, the case fails to show error in the judgment of the county court. There is undoubtedly enough in the testimony of Barber, if admissible, to ordinarily justify a jury in finding for the plaintiff. But upon a report of auditors, and especially of a referee, all infei’ences of fact are to be made, and can only be made, by the court, to which the report is' returnable, and after such court have rendered judgment, upon the report, if their judgment can fairly be sustained, by any inference of fact they might have drawn from the report, it is the duty of a court of error to presume they based the judgment upon such inference. Walbridge v. Kibbee, 20 Vt. 543, and Foot v. Ketchum, 15 Vt. 258, go to show where the maker of a promissory note assigned, promises the holder to pay it to him, under a mistake -of the facts and the rights of the holder, he is not bound by such promise, until the other party has so far acted upon it, as 'not to be in a situation of being able to be put in staiuo quo, nothing of which appears in the present case, and we may well presume, as we are bound to do, that the county court found the contrary fact, and based their judgment upon it. Judgment affirmed. Note. — There are certainly some facts stated in the report, which would lead [624] one very strongly to question the entire reasonableness or justice- of compelling defendant to pay this account, unless a case was very clearly made out against him. He seems never to have been indebted to the plaintiffs, but merely to have received the articles charged in payment for his labor, with the full consent of both plaintiffs. The plaintiffs had failed, and in their assignment had reserved their claim against Wills, to whom these articles were properly chargeable, having been entered as delivered to defendant. If then the loolcs had leen completed, these articles would have stood charged to Wills, in the very account excepted from the assignment. Under these circumstances any tribunal must be very credulous to believe, that defendant understanding^ promised to pay. The most which could be supposed rational, would be that he promised to see it adjusted; at all events, we think the county court fully justified in requiring the plaintiffs to make out a clear case of fraud intentionally practiced by defendant, either upon Barber or his assignees, before they would subject him to a second payment for these articles. We allude to these considerations, as affording an ample justification for the judgment.