Bradley v. Kelley
| Decision Date | 03 October 1933 |
| Court | Vermont Supreme Court |
| Parties | BRADLEY v. KELLEY. |
The plaintiff relied on a note shown by his evidence to have been destroyed by fire, while defendant testified that the note produced by him and the mortgage securing it were given to secure plaintiff for indorsing other notes, that these notes had been paid, and that the note in question had been surrendered. The newly discovered evidence tended to show that the note produced by defendant was not typed on the same typewriter used in drawing up the mortgage, but was recently typed, and that the type in the note produced resembled that on new typewriter in office of lawyer who drew up the mortgage.
Exceptions from Orleans County Court; John C. Sherburne, Judge.
Action by John M. Bradley against Clarence B. Kelley. Judgment for defendant, and plaintiff brings exceptions and petitions for new trial.
Exceptions overruled, petition for new trial sustained, judgment and verdict set aside, new trial granted, and cause remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.
Porter, Witters & Longmoore, of St Johnsbury, for plaintiff.
Pierce & Miles, of Newport, for defendant.
This is an action of contract. The plaintiff sets forth in his specification, which was tiled with the writ, that "he will seek upon trial to recover of the defendant only upon a certain note payable to the order of the plaintiff, dated at Newport, Vermont, December 9, 1925, for the sum of One Thousand Dollars, for value received, payable on demand, with interest, and sighed by the defendant, Clarence B. Kelley." The note was secured by a chattel mortgage executed by the defendant at the time the note was executed.
The defendant filed an affidavit of defense in which he alleged under oath that the note was never delivered to the plaintiff; "that no obligation is owing by the defendant to the plaintiff by reason of such note"; and "that no consideration was paid by the plaintiff to the defendant at the time the alleged note" was executed. He filed an answer later in which he pleaded the general issue and payment. The only defense relied upon at the trial below was that of payment. There was a trial by jury, and a verdict and judgment for the defendant. The plaintiff excepted.
The plaintiff is the principal stockholder and chief executive officer of Bradley Auto Sales, Inc., a corporation engaged principally in selling motor vehicles and operating a garage in the city of Newport. He lived in an apartment in the garage building. His evidence tended to show that the note and mortgage were drawn and executed in his office in the garage building on December 9, 1925, and that the consideration for the same wag $1,000 in cash paid by him to the defendant at that time, and that the note had not been paid. He did not produce the note at the trial. His evidence tended to show that the note was destroyed by fire on December 6, 1931, when the garage building was burned.
On October 24, 1925, five notes for $100 each, signed by the defendant and indorsed by Bradley Auto Sales and Noble & Sons, "running from one to five months consecutively," were given to the National Bank of Newport The notes were paid when due; the last note being paid on April 2, 1920.
On December 7, 1925, the Orleans Trust Company took a note dated December 4, 1925, for $500, signed by the defendant and indorsed by Bradley Auto Sales, in a deposit made by the latter, the proceeds of which note were credited to the account of the Bradley Auto Sales. The defendant claimed below that these note transactions were personal transactions with the plaintiff; but the evidence is to the contrary. The consideration for the note taken by the Orleans Trust Company was $500 paid to the defendant by the Bradley Auto Sales by its check of December 5, 1925. The note was paid in full on March 23, 1926. All of the notes were paid by orders given by the defendant on Noble & Sons, who were milk dealers and who had the milk from the defendant's farm. The plaintiff claimed that these two note transactions were with the corporation and not with him personally; that the only personal transaction he had with the defendant was the note sued upon and the mortgage securing it.
The defendant claimed that the note for $1,000 and the mortgage securing it were given to the plaintiff to secure him for indorsing the notes taken by the two banks. He testified that he had the note and mortgage drawn by Mr. Cleary, a lawyer of the city of Newport, on December 9, 1925, and on the same day he took them to the plaintiff's place of business, where he executed and delivered them to the plaintiff; that, long after the notes taken by the banks had been paid, the plaintiff handed him the note for $1,000, saying: "I don't know as I need this any more." The defendant produced at the trial below a typewritten instrument, Defendant's Exhibit C, which reads as follows:
He testified that this instrument was the note for $1,000, which he gave to the plaintiff on December 9, 1925, and which the plaintiff surrendered to him.
The plaintiff denied that this instrument was the note which the defendant executed and delivered to him on December 9, 1925.
The plaintiff has briefed three exceptions taken to the admission of evidence.
The defendant was the first witness called by the plaintiff, and it was proved by him that he executed and delivered the note for $1,000 and the chattel mortgage securing it He was also questioned as to whether the note had been paid, and about his allegations in the affidavit of defense that the note was never delivered to the plaintiff and that there was no consideration for it. On examination by his own counsel, the defend ant testified that, before he gave the note for $500 that was taken by the Orleans Trust Company, he got $500 from the National Bank of Newport He was then asked: "And was that on a note that was signed by Mr. Bradley?" The plaintiff objected to the question on the ground: The objection was overruled, and the witness answered, subject to exception: "I think it was."
It was error to receive the parol testimony over this objection of the plaintiff until the defendant had shown that he was unable to produce the note. But the error was harmless. It appears from uncontradicted evidence introduced later by the defendant that he did not give a note for $500 to the National Bank of Newport, but did give five notes, each for $100, which were indorsed by Bradley Auto Sales, Inc., and Noble & Sons. There is no evidence that the plaintiff personally signed or indorsed those notes.
It appears from the testimony of the plaintiff on cross-examination that in 1930 he had trouble with the defendant which resulted in a personal conflict, and that a suit was pending in county court as a result of that conflict. Subject to the objection and exception of the plaintiff, the defendant was permitted to examine the witness as to the details of that conflict. Such details are not ordinarily admissible in evidence, and it would have been better if the court had excluded such evidence; but the scope of cross-examination rests largely in the discretion of the trial court, and we are unable to say that there was an abuse of such discretion in this case.
The plaintiff testified on cross-examination that he understood before this suit was brought that the defendant had disposed of most of the mortgaged property, and that he knew that an action of trover was an effective action in such cases; that he did not bring an action of trover against the defendant because he did not want to do that. He was then asked: "And you didn't want to do that after you had a fight with him either, did you?" The question was objected to on the ground: The objection was overruled, and the witness answered, subject to exception: "No, nor now either." We agree with the plaintiff that it was immaterial that he may have had two causes of action against the defendant; and it is the general rule that, when a party has two legal causes of action involving the same subject-matter, the reason why he brought one action rather than the other is not a matter of judicial inquiry. But it does not appear that the question and answer were prejudicial, or that the trial court abused its discretion in permitting them.
On Petition for New Trial.
The plaintiff has brought a petition for a new trial based upon the ground of newly discovered evidence. The newly discovered evidence is set forth in the affidavits of the plaintiff, David E. Porter, Esq., his attorney, Miss Elenore Cooley and Wilbur P. Turner. It concerns the instrument, Defendant's Exhibit C, hereafter called Exhibit C, hereinbefore set forth, which the defendant testified was the note for $1,000 which he caused to be made in Mr. Geary's office on December 9, 1925, and which he signed and delivered, with the mortgage securing it, to the plaintiff on that day to secure the latter for signing his notes held by the two banks, and which he testified was delivered to him by the plaintiff long after the notes were paid.
The newly discovered evidence on which the plaintiff relies is in the form of ex parte affidavits which, by the agreement of counsel, are to be...
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