Tufts v. Town of Chester

The opinion of the court was delivered by Rowell, J. Whatever tends to render a claimed fact probable or improbable is relevant to show whether the fact exists or not. Thus, the question being whether the 'plaintiffs intestate 'had a lien on defendant’s horse for his keep, defendant was allowed to show that at the time of the claimed contract of lien the intestate was largely indebted to him, as tending to render the making of such contract less probable. Randall v. Preston, 52 Vt. 198. The fact that children had promised to regard the expressed wishes of their mother in the division of her estate was held relevant as rendering it more probable that they did regard them and make the agreement claimed by plaintiff, which was in accordance therewith. Reed v. Reed, 56 Vt. 492. There are many other cases in the State illustrative of this rule. The question here was whether there was a contract between the plaintiff and the town whereby the town was to pay her for taking care of her mother, who was, and for a long time had been, a town charge. The testimony on the part of the plaintiff tended to show such a contract, made with Mr. Addison Adams, defendant’s overseer of the poor. Mr. Adams denied it, and testified that he never made the contract with plaintiff that she claimed and on the strength of which she sought to recover. In this state of the case the plaintiff was allowed to show that the year before she claimed the contract was made, Mr. Adams told the witness, speaking about plaintiff’s care of her mother, that plaintiff was a good girl and did well and that he expected they should have to pay her. This testimony was admitted as bearing upon the probability of Adams having made the contract claimed by plaintiff, and for this purpose it was admissible, for if he entertained that opinion of the matter then, [357] 4t was some evidence tending to show that he entertained the same opinion at the time plaintiff claimed the contract was made, and if he did, it would heighten the probability that he made the contract claimed. The remoteness of time did not, as matter of law, make the -testimony irrelevant. That went only to its weight. But how far back it was proper to go, if indeed any limit in time should be fixed to the admission of relevant testimony, was for the court to .•determine in its discretion in view of the circumstances of the case. Some courts treat this as a question of fact, as to which no question ■of law can be raised, Darling v. Westmoreland, 52 N. H. 401; 13 Am. Rep. 55; while others hold that whether the court exercised its discretion soundly or not may be inquired into on •exceptions. Steph. Dig. Ev. c. 2, art. 2, note. If this be so, we have no doubt but the discretion was soundly exercised in this case. Cf. Noyes v. Fitzgerald, 55 Vt. 49. Mr. ■ Ira H. Adams was one of defendant’s selectmen in 1888, and had been one for ten or twelve years, but not in succession. Defendant offered to show by him that he never heard fill 18S7 that plaintiff made claim against the town. It does mot appear that the witness was selectman at any time before 1888 when plaintiff was taking care of her mother, and there is nothing to show that he was so circumstanced as to be likely to have heard of it had claim been made. Nor could any unfavorable inference be drawn against the plaintiff, in the circumstances, for not making the claim; for •although it is competent, when one pretends to have a just debt against a responsible party long overdue with payment unasked) to show that during the time the claimant was in such stress of pecuniary circumstances that he could ill afford to forego payment of his demand if he had one, yet it is not enough to show merely that he was poor, for from this alone arises no unfavorable inference against him, but you must go further, and show that he needed, the money to use. Stone v. Tapper, 58 Vt. 409. Nothing of the kind appears here. Hence this testimony was properly excluded for this reasou. [358] Defendant moved to set aside the verdict because, among other reasons, there was no evidence to support it. An implied promise is raised against a .town the same as against an individual. There need be no special request in order to raise it. The request may be implied from the circumstances. This is the effect of what is said in Worcester v. Ballard, 38 Vt. 60. It is claimed on the strength of Newton v. Brown, 19 Vt. 16, that a motion to set aside a verdict for want of-any evidence-to support it is addressed to the discretion of the County Court, and that its action thereon is not revisable on exceptions. But in this case we thought best to look into the evidence, and finding ample to support the verdict, we have no occasion to go-further. Judgment affirmed.