Perry v. Dow

The opinion of the'court Avas delivered by Royce, Ch. J. The only question presented by the exceptions is as to the admissibility of certain testimony that Avas offered by the defendant. After the mortgage had been executed and delivered to the plaintiff, but before the parties had left the room in Avhich it was executed, the defendant offered to show by himself and the justice, A\dio administered the oath to the parties, that he told the justice there was no consideration for the mortgage, that it was given for a cover, and there was nothing to it, and the 'reply that Avas made by the justice. The defendant was alloAved to prove the reply made by the plaintiff, and he had testified to the fact that there was no consideration for the mortgage, and the purpose for which it Avas given. The only purpose to be answered by the introduction of that evidence Avas to lay the foundation for the claim that the plaintiff", by his silence, or failure to deny the truth of the statement made by Dow, was estopped from denying its truth. He Avould be so estopped if the statement was made under such circumstances as called for a denial by the plaintiff. It will He noticed that the statement was not directed, to him, and that he was not called upon to admit or deny its truthfulness. He AAras under no obligation to notice or take part in the conversation that Avas going on betAveen the defendant and the justice, and his neglect to do so did not prejudice his rights. The question of the admissibility of such evidence Avas before this court in Vail v. Strong, 10 Vt. 457; Gale v. Lincoln, 11 Vt. 152; and in other cases cited on page 279 of Roberts’s Digest, and it was held inadmissible. The evidence Avas properly excluded, and the.judgment is affirmed.