Jones v. Town

Berry, J. Defendant’s first point is that the verdict is against the weight of evidence; but there is certainly evidence in the case reasonably tending to support it, and, where this is so, this court does not inquire what the weight of evidence is. We think there is evidence in the case from which the jury would have been warranted in inferring that the sale by James E. Jones to the plaintiff was made in good faith, in payment of a just indebtedness of the former to the latter, and without any fraudulent intent as respected the former’s creditors. The defendant’s first and second requests for instructions to the jurj:' were properly refused, because, upon the evidence, it was an open question whether the goods, at the time they were levied upon by the defendant, were not in the possession of the plaintiff, James E. Jones being a mere custodian of that possession, in his capacity as the plaintiff’s clerk. If the plaintiff was in possession, it wa,s not necessary for him, as a foundation for this action, to make and serve an affidavit, (as he in fact did,) under Gen. St. c. 66, § 137. Barry v. McGrade, 14 Minn. 163; Butler v. White, 25 Minn. 432. If he was thus in possession, the affidavit would be superfluous; and if (as the defendant claims) some of its statements were untrue, there would be no ground upon which the defendant could found any estoppel upon them, for it in no way appears that he has done or refrained from doing anything on their account. So far as we can see, the only value of the affidavit to defendant would lie in his right to use it as [175] ■declaration by- plaintiff somewhat at variance with the testimony upon the trial. Defendant’s third request was properly refused, because it -assumes as a fact something which, upon the evidence, was •open to dispute, viz., that the sale by James R. Jones to the plaintiff was not followed by actual and continued change of possession. Judgment affirmed.