Fenno v. Weston

Aldis, J. To sustain this action it became necessary for the plaintiff to show a sale of the horse to him from the defendant. In the course of the trial among other evidence of a sale the defendant introduced a letter from one Kibbee to the defendant, dated August 10, 1854 in which he says: “I have concluded that I will give you three hundred dollars for your two colts that I looked at — if you say I may have them let me know as soon as possible, and you shall have your money.” The defendant wrote in reply “ that he might have the horses for three hundred dollars if he would come for them.” Before Kibbee wrote to the defendant he had a negotiation with him in regard to the horses, and then told him that he wanted one of the horses for himself, and that he had a friend in Massachusetts who might want the other, and that upon his return he would tell his friend of the other horse, and if it suited him he would write'the defendant. After receiving the defendant’s letter, Kibbee and his friend (the plaintiff) came to Randolph and looked at the horses, and the evidence tended to show that the plaintiff purchased the horse in question of the defendant and paid him. The defendant claimed that he sold the horse to Kibbee, and not to the plaintiff, and that Kibbee’s letter of August 10, and his reply, constituted the contract of sale and passed the title of the horse in question to Kibbee; and that the court should so instruct the jury. The court declined to do so. The charge as given we think correct. The two letters were evidence tending to show a sale to Kibbee, but nothing more. They do not on their face purport a sale. The letter of Kibbee’s is an offer to buy at a price named, but [351] nothing is said as to the place of delivery of the horses. This was an important point; for the seller lived in Vermont, the purchaser in Massachusetts. The reply of the defendant accepts the offer of Kibbee upon condition that he would come for them. Thus far the trade is not closed, for Kibbee may refuse to come for them. His offer did not say he would. And thus matters stand when Kibbee and Fenno came to Randolph. Clearly the letters make no contract of sale. When the parties met they were at liberty to close that trade, or to make a new one, as they pleased. The evidence was conflicting as to what they did. It was a question of fact, and properly submitted to the jury by the court upon all the evidence in the case. It is unnecessary therefore to inquire whether the title to a specific chattel can pass by bargain and sale without payment or delivery, for in this case the letters on their face show there was no bargain closed till the time when the horses were paid for and delivered. H. The plaintiff, on discovering the unsoundness of the horse, wrote to the defendant several letters, the purport of which was that the plaintiff, having bought the horse of the defendant upon a warranty of soundness, claimed damages for the breach of warranty. The defendant replied to the first letter denying that the horse was unsound, and saying nothing as to whether he sold the horse to the plaintiff or Kibbee. To the other letters he made no reply. We do not think that the use of the word “ admission” in the charge of the court, taken in connection with the rest of the charge, could have misled the jury, or that they were influenced by it to attach any more weight to this evidence than properly belonged to it. It is further claimed by the defendant that the court instructed the jury that the defendant’s silence in the letter he wrote to the plaintiff upon the point whether he sold the horse to him or not, and his omission to answer the plaintiff’s subsequent letters were to have the same weight as evidence that they would have if the [352] plaintiff and the defendant had personally met, and the plaintiff had said to the defendant what he wrote'to him. The omission of a party to reply to statements in a letter about which he has knowledge, and which if not true he would naturally deny, when he replies to other parts of the letter, is evidence tending to show that the statements so made and not denied are true. So where there has been a correspondence between parties in regard to some subject matter, and one of the parties writes a letter to the other making statements in regard to such subject matter, of which the latter has knowledge, and which he would naturally deny if not true, and he wholly omits to answer such letter, such silence is admissible as evidence tending to show the statements to be true. Still all such evidence is of a lighter character than silence when the same fads are direclly stated to the party. Men use the tongue much more readily than the pen.' Almost all men will reply to and deny or correct a false statement verbally made 1o them. It is done on the spot and from the first impulse. But when a letter is received making the same statement, the feeling, which readily prompts the verbal denial, not unfrequently cools before the time and opportunity arrive for writing a letter. Other matters intervene. A want of facility in writing, or an aversion to correspondence, or habits of dilatoriness may be the real causes of the silence. As the omission to reply to letters may be explained by so many causes not applicable to silence when the parties are in personal conversation, we do not think ike same weight should be attached to it as evidence. Whei’e the party replies to the letter, but says nothing upon points which he would naturally contradict if untrue, as, in this case, in Weston’s reply to Fenno’s first letter, the silence furnishes stronger proof of acquiescence in the alleged facts than the subsequent entire omission to reply. In Hill v. Pratt, 29 Vt. 126, the language of the learned judge in giving the opinion in the the case seems to go further than the facts of the case required. The defendant wrote to the plaintiff saying he had served the writ according to their instructions,, and as they did not reply it was claimed to show that they acquiesced [353] in the statement made in his letters. But the case further says-: it was conceded that the defendant had no such instructions. Such a concession would necessarily contradict all idea of acquiescence implied from not answering the letter. In Fairlee v. Denton et al., 3 Car. & P. 103, the plaintiff wrote a letter to the defendant demanding a sum of money as due to him, to which the defendant made no reply. Such a case of a bare naked claim by letter, without being accompanied by any correspondence whatever between the parties, is clearly distinguishable from the case at bar. We do not understand that the county court in this ease charged the jury that the answer, and the omission to answer, were to be considered as of the same weight as if the parties had personally met, and the same answers and omissions to answer had then occurred. The court illustrated their views of the effect as evidence of the silence of a party when he ought to speak, and of the circumstances from which it would derive more or less force, and finally remarked that “ the letters, the answer to one and the neglect to answer the others might be considered in much the • same light as if the parties had met from time to time,” etc. The expression so used do not convey the idea that this kind of evidence is entitled to the same weight, as silence under false charges in conversation ; although some modification of the language, if standing alone, would seem to be required to preclude all chance of error. But, when taken in connection with the illustrations given by the court and the other evidence, we do not think it so likely to have misled the jury as to justify us in opening the case. The judgment of the county court is affirmed.