Sawyer v. Phaley

Aldis, J. If the language used by the court is to be construed as an instruction to the jury that the evidence did not tend to show that Sawyer was a nominal, and Foster'the re'al plaintiff, or if it was incautiously expressed so as to lead the jury to suppose that the evidence introduced by the defendant for that purpose, was not to be considered by them, then it becomes our duty to inquire whether the facts proved by the defendant had such a legal tendency. [73] On the other hand, if the language was not intended as an instruction to the jury as to the legal tendency of the evidence, and if it was not likely to be so understood by them, but was understood as merely expressing the view the judge took of the weight of the evidence, leaving it still open to them to weigh it and judge for themselves as to what it tended to prove and did prove, then the use of such language was not error. Ordinarily, if a judge thinks the evidence has no tendency to prove the issue, he either excludes it or directs a verdict, or directly charges the jury that they are not to weigh it, and that it is excluded from their consideration. ■ A case may be so situated, however, as-to justify a departure from the general practice. Thus there may be some doubt whether the testimony does not tend to prove the issue; the party against whom it is offered does not pbject, preferring to have it come in and be weighed for what it is worth, rather than run the risk of having the expected judgment reversed by excluding it. In such case the evidence may properly be left to go to the jury. The court has the right to express their opinion as to its weight and tendency if they see fit, and if they do so, still distinctly leaving it for the jury to weigh it and to draw a different conclusion if it should appear differently to their minds this would not be error. Different judges take different views of their duty in this respect. The exercise of the right, the time, manner, and duty of exercising it must always rest in the discretion of the judge. It depends so much upon the particular circumstances of each case, upon the course and character of the argument and sometimes even upon facts outside of the ease, such as popular excitement and external influences which affect, or are meant to affect, the feelings, prejudices and judgment of jurors, that the judge alone can properly estimate them ; and it becomes at times a difficult and delicate, though none the less an obligatory duty upon him to determine what he ought to say and where be ought to stop. It is obvious in the present case that the court below did not intend to withdraw the evidence on which the defendant relied from the consideration of the jury. On the contrary, they understood that it was not excluded, but Was admitted. There is no language used in the charge indicating an intent to rule it out. [74] If, then, there was no such intent, the next inquiry is, was the language used likely to mislead the jury ? The expression of the judge’s opinion upon the evidence might have great influence upon the verdict; it might influence the opinions of jurors and turn the scale. But to he error in law it must do more than this. It must he likely to lead the jury to think that they were not at liberty to differ from the judge as to the weight and tendency of the evidence ; that he intended not merely to give his opinion upon the weight of the evidence, still leaving them as the ultimate judges of fact, to weigh and decide it as they thought right• but that he intended to instruct them to shut it out of the case, and to consider it as having no legal bearing upon the issues. From the manner in which the language used by the court appears to have been introduced, rather as an incidental remark than as a direct charge upon the point; and from the fact that the court after that, still plainly and explicitly tells the jury that if they do find from the evidence that Sawyer was only a nominal plaintiff, and Foster the real party, then their verdict should be for the defendant, we think the jury must have understood the language as expressing only the opinion of the court upon the weight of the evidence, and not as tending to exclude it. There can be no doubt but that this was what the judge intended, and we think he was not misunderstood. This makes it needless for us to inquire whether the evidence did tend to- show Sawyer to be only a nominal plaintiff or a collusive holder of the note, as the evidence tending to show it, ii it did so tend, was admitted and submitted to the jury. II. The contract between Sawyer and Foster, either standing alone or accompanied with the parole evidence, does not show that Sawyer held the note as collateral security, or in trust for Foster. On its face it purports to be an absolute transfer of the note, with a conditional guaranty. Foster retained no interest, but might be immediately made liable on his contract as a guarantor. This, we think, would not let in the defence of a failure of consideration as against the plaintiff. III. The pendency of the suits set forth in the exceptions was not constructive notice to the plaintiff of the want of consideration- Judgment affirmed.