Holway v. Sanborn

Makshall, J. The first question presented for consideration is this: Is the presumption of payment which by the rules of the common law arises from the circumstance of a debt being twenty years past due, one of fact merely, rebut-table by evidence of nonpayment, or is it one of law, in legal effect extinguishing the debt ? That is ruled in favor of the first of the alternatives by Delaney v. Brunette, 62 Wis. 615, 23 N. W. 22. The presumption is there spoken of as a mere evidentiary inference of payment subject to be overcome like any other debatable matter, except the fixed period requisite to create the presumption gives an artificial dignity, so to speak, to the circumstance of such weight as to require pretty satisfactory evidence to overcome it. That is but a declaration of a familiar elementary principle. It will be found stated and applied in numerous adjudications elsewhere and also stated in all text-book authorities. A good type of the adjudications outside of our own state is Hale v. Pack's Ex’rs, 10 W. Va. 145, to the effect that the statute is supplementary to the common-law limitation, but [155] the latter is not a legal bar, it is only a presumption of fact rebuttable by evidence satisfactorily showing the truth to be otherwise. A good type of the text-book’ authorities is Jones on Evidence at secs. 63 to 66 inclusive (2d ed. §§ 66 — 69)- That is particularly valuable because of the numerous citations mentioning circumstances judicially regarded as competent to be considered by a jury in respect to whether the presumption should prevail or not. The text referred to is in these words: “The presumption of payment arising from the lapse of' time may of course be rebutted by satisfactory and convincing proof; but in such case the burden of proof rests upon the creditor.” The following circumstances bearing on the question, particularly applicable to this case, are mentioned: the absence of the debtor from the state during the greater part of the time relied on to create the presumption (Daggett v. Tallman, 8 Conn. 168; McLellan v. Crofton, 6 Me. 307, 334); facts preventing the creditor from bringing suit (Hale v. Pack’s Ex'rs, 10 W. Va. 145; Crooker v. Crooker, 49 Me. 416) ; relationship of the parties and that the collection of the money might have occasioned distress or great inconvenience (Wanmaker v. Van Buskirk, 1 Saxt. Ch. (N. J.). 685. Many other circumstances might be mentioned, among them some characterizing this case, as the jury might reasonably have concluded from the evidence; such as, possession of the note by the payee down to the time of his demise; finding it among his papers notwithstanding pretense that at a personal interview, the details of which were excluded under the statute, it was claimed to have been paid; finding it among his valuable papers apparently as an existing obligation; efforts to avoid service of papers within the state and efforts to obtain such service within the twenty years. Since the presumption of payment in such a ease rests on [156] circumstantial evidence, necessarily, rebuttal thereof is particularly within a field rendering such evidence competent and, generally, the main reliance, especially in cas© of death of the payee, as in this case. “Any facts and circumstances,” as it is said, “which render it more probable than otherwise that payment has not in fact been made, may be received.” If they, in the whole, are, in reason, sufficient to overcome the presumption of payment arising from the lapse of time, and evidence corroborative of it, satisfying the jury that the truth is otherwise, a verdict for a recovery is proper. The next proposition for discussion is this: Did the court err in rejecting the evidence of defendants, or either of them, respecting a conversation claimed to have been had by them with the payee in respect to the note? Such evidence was rejected, primarily, under sec. 4069, Stats. (1898). That it was properly rejected as to the one confessed to have had the conversation is too clear for discussion. As to the other, the correctness of the ruling turns on whether the person, not actually taking part in the conversation or transaction, was by his presence and influence a participant therein. Schultz v. Culbertson, 125 Wis. 169, 103 N. W. 234. So at the outset the court had to pass upon a question of competency, involving determination of a matter of fact. In that situation it is elementary that the result is not disturbable on appeal unless manifestly wrong. That rule, as we view the record, controls the proposition in favor of respondent. Eespondent was permitted to testify as regards directions she gave her attorney in respect to collecting the note. That was fairly within the field of competency as a circumstance bearing on the evidentiary effect of the presumption of payment from lapse of time, and it seems to have been offered and received on that account alone. The next proposition suggested for decision is: Did the circuit judge err in saying to the jury that the note was found •among the valuable papers of the deceased apparently un [157] paid? The idea intended to be thereby conveyed and the only one wbicb probably reached the jury is that the paper was found, as stated, and that there was nothing about it indicating payment, which is strictly correct. It is not error in giving instructions to speah of evidence to be considered, mentioning the same correctly, - and without suggesting its effect where there is room for conflicting inferences. There was no suggestion as to the weight of the circumstance here. That was left entirely to the jury to consider in connection with all other evidence. The last proposition is, whether the evidence warranted the verdict. The case was peculiarly one for jury determination. If in any reasonable view of the evidence they could honestly have reached the conclusion which they did, it cannot be disturbed on appeal even though it may appear here that the major probabilities are the other way. That elementary doctrine, as we view the record, rules the last proposition in favor of respondent. By the Court. — The judgment is affirmed.