Armstrong v. Noble

The opinion of the court was delivered by Ross, J. The plaintiff took the note in suit long after the same fell due. He took it, therefore, subject to all the existing'defences to the note itself, or which grew out of the note transaction, or out of any agreement between the defendant and the payee, in relation to it. He could not plead in offset a matter which existed between him and the payee at the time of the transfer to the plaintiff. Walbridge v. Kibbee, 20 Vt. 543; Bowen v. Thrall, 28 Vt. 382. The defendant was allowed against the plaintiff’s objection and exception to introduce evidence tending to show that prior to the transfer he had boarded the payee’s wife under such circumstances that there was an implied promise on the part of the ' payee to pay the defendant therefor. The exceptions give no details of what this evidence was. On the face of it, it would seem to be a matter of offset rather than one which grew out of the note transaction, or that was connected with it. The statement in the exceptions that the evidence tended to show an. implied promise from the payee negates the idea that there was in this testimony any evidence tending to establish an express promise from him to have the board of the wife applied on the note. An implied promise is one raised by the law from certain facts, and which the law enforces as though there was an express promise where, in fact, none exists. But there may have. been something in this evidence that tended to connect this phase of the defence with the note. This court will not presume there was not, in order to find error in the action of the County' Court in admittihg this testimony. There should have been a statement in the exceptions that there was no evidence tending to connect the payee’s implied obligation to pay the defendant for his wife’s board, with the note, or, the evidence thus admitted should have been, by a [432] reference thereto in the exceptions before this court, in order to sustain the plaintiff’s exception on this contention. But after the evidence was closed the court, in the charge to the jury, withdrew this branch of the defence from their consideration, and held that the evidence on this point was insufficient to establish an implied promise or obligation on the part of the payee to pay the defendant for boarding the wife of the payee. This holding would seem to have cured any error the court may have committed in admitting the evidence. It is contended by the defendants, however, that inasmuch as the defendant failed to establish this branch of his defence, or to introduce sufficient evidence in the judgment of the County Court to warrant a submission of the question to the jury, the whole evidence on this subject was thereby rendered inadmissible, and that the case falls within the principle announced in State v. Meader, 54 Vt. 126. It is not quite apparent to the common mind, how evidence which tends to establish all the elements save one of a full defence, becomes inadmissible because the evidence to establish the lacking element happens to be wanting. But this branch of the defence was withdrawn from the jury. It is not manifest how the plaintiff can have been injured ' by the admission of evidence tending to establish it. It is not a case in which some portion of the testimony bearing upon the issue has been erroneously admitted, and the court has undertaken to cure the error by charging the jury to disregard the inadmissible testimony. The ruling of the court in withdrawing the entire issue on this defence from the jury was for the benefit and protection of the plaintiff. He should not be heard to complain of a ruling wholly in his favor. In this respect the case is distinguishable from State v. Meader. The doctrine announced in that case did not receive the approval of the entire court, and it should not be pressed beyond its legitimate limits. II. The defendant’s testimony also tended to show that the payee of the note, while he owned and controlled it, especially agreed with the defendant that the support of his wife should be a payment upon the note. It is contended that the court erred in allowing the jury to consider anything but the direct testimony [433] bearing upon this issue, and especially in allowing the jury to consider the fact that the defendant did board and support the wife of the payee as a circumstance bearing upon the probability of the payee of the note having made such special agreement. Whatever renders a claimed fact probable, or improbable, is proper evidence to be considered in determining whether the fact exists. If the defendant did not board and support the wife of the payee, it would be highly improbable that the payee would have made a special promise to pay for such support and have the same treated as a payment on the note. The fact that he did board and support the payee’s wife and that it was the legal duty of the payee to furnish her such board and support, was a circumstance bearing upon the probability of whether he specially agreed to pay for the same. It is also claimed that the County Court allowed the jury to use all the evidence bearing upon the implied promise of the payee of the note to pay for his wife’s support, in determining whether there was a special agreement that such support should be a payment on the note. An examination of the entire charge of the court is a clear refutation of this claim. After withdrawing the claim of the defendant that the evidence showed an implied promise of the payee to pay for his wife’s support, the court to establish the special agreement in regard to such support being a payment on the note, confined the jury to a consideration of the direct testimony, and the circumstances pro and con bearing upon this issue. We find no error in the action of the court in this respect. III. The wife of the payee of the note was allowed to testify in the case, but not as to any matters that would be a breach of marital confidence. The case neither on its facts nor pleadings showed that her husband had any interest in the event of the suit. Unless he was thus interested she was a competent witness in the suit. As has been frequently held and announced, error must appear upon the face of the exceptions. Every reasonable intendment is to be made in favor of the judgment of the County Court. It is for errors that appear upon the exceptions, and not for errors that rest on the assertion of counsel, that judgments are reversed [434] It is possible that the payee of the note is the real plaintiff. If not the real plaintiff, it is possible that he transferred it in such a way that he is legally bound to make good to the plaintiff whatever was apparently due upon the note at the time of the transfer. But there is no statement in the exceptions that either possibility is a reality. This court would commit a grave error if it should reverse a judgment of the County Court upon a conjecture. Judgment affirmed.