Coolidge v. Ayers

Watson, J. The contract of sale under seal containing a warranty of title from the McPhail Piano Company to the defendant was introduced in evidence by the defendant. The defendant’s testimony on cross-examination tended to show that the company was defending the suit. In connection with this testimony the plaintiff was permitted to ask defendant, .subject to objection and exception, whether he expected that the company would make him good in case the suit went against him. Also whether he did not consider the company good for his expenses in and about this litigation, and for any judgment that might be rendered against him therein. Each of these questions was answered in the affirmative. This was not error. Since the contract of purchase introduced in connection with the defendant’s testimony in chief contained a covenant that the company would “warrant and defend the title” against all claims, it was proper cross-examination to show the defendant’s understanding of his relation to the case under the contract as between him and the company. This testimony when taken with the other evidence showing defendant’s conduct touching the matter since the commence452 went of this suit had a bearing on the question whether he took the property in good faith, which was declared to be a material question when this case was previously before this Court. 76 Vt. 405, 57 Atl. 970. The defendant testified in cross-examination that it was a three hundred and fifty dollar piano and that he got it for two hundred dollars. He was then asked, subject to exception, whether one hundred and fifty dollars was quite an object, when he got security against any trouble about the title. It is argued that this question assumed that defendant had received security, a fact which had not been shown by evidence, by reason whereof it was improper in substance. One definition of the word security is, that it is something which malees the enjoyment or enforcement of a right more secure or certain. Rapalje & Raw, Raw Diet. Thus defined, we think the covenant .to the defendant to warrant and defend the title is security to him, and that the question is not subject to the criticism made. McClure, the bankrupt and a witness called by the plaintiff, was recalled .by the defendant for the purpose of laying a foundation for impeachment. For this purpose his attention was called to his testimony given at the former trial of this case, in which it appeared that the witness, in an interview with a representative of the McPhail Piano Company in December, 1900, on being informed that the company had taken the pianos, sold them, and applied the same on his account, said he was pleased to learn that fact. In further examination by plaintiff’s counsel, the witness testified that he meant that he was pleased to learn there might be a balance which would be payable to him from the sale of the pianos, and not that he was pleased to learn that they had taken them. In continuation of this examination the witness was asked, subject to exception, whether he ever gave the com [453] pany to understand that it was gratifying to him to have them take the pianos. He answered that he didn’t know; couldn’t remember whether he made any such expression to them or not. Assuming the question to be objectionable, the exception is without avail, for the answer was harmless. The defendant gave testimony in his own behalf. In relating what was said and done between himself and the agent of the company at the time he purchased the piano, he stated among other things that the agent told him that the McPhail company had always owned the piano. In rebuttal the plaintiff was permitted to show that at the former trial in giving his testimony concerning the same occasion, the defendant did not testify that the agent so told him. The defendant excepted on the ground that he had not been asked regarding his former testimony by way of laying a foundation for such impeachment. It is a general principle of evidence that a failure by a party to assert a fact when it would have been natural to assert it, amounts in effect to an assertion of ■the non-existence of the fact. Wigmore, Ev. § 1042. Unlike the case of a mere witness, in seeking to impeach a party by showing such self-contradiction, no foundation therefor need be laid. Wigmore, Ev. § 1051. The plaintiff testified in rebuttal, under exception, that the approximate amount of property which came to his hands as trustee in bankruptcy was $1,600. This evidence was material on the question of whether the transfer by McClure to the McPhail Piano Company constituted a preference under the bankruptcy law, and it was within the discretion of the court to admit it then even though not strictly in rebuttal. At the close of the evidence the defendant moved for a verdict on the ground that there was not sufficient evidence to warrant a verdict for the plaintiff, and to the overruling of the motion defendant excepted. It is said in the defendant’s [454] brief that the only question for the jury was whether the defendant was an innocent purchaser for value. We do not understand that any question was made but that he paid a valuable consideration. Hence, from the defendant’s point of view the material question for the jury was whether the defendant took the property under his purchase in good faith and without notice. Bearing upon this question with more or less force as evidence were many facts and circumstances with inferences to be drawn therefrom, concerning which reasonable men might differ. It was therefore a question for the jury, and the motion for a verdict was properly overruled. Tracy v. Grand Trunk R'y Co. 76 Vt. 313, 57 Atl. 104. The overruling of the motion to set aside the verdict as being against the evidence was discretionary with the trial court and not revisable here. Jangraw v. Mee, 75 Vt. 211, 54 Atl. 189. Judgment affirmed.