Cole v. Boardman

• Court: New Hampshire Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Cole v. Boardman, 63 N. H. 580, 4 A. 572 (N.H. 1886)
• Decision Date: 12 March 1886
• Parties: COLE v. BOARDMAN.

4 A. 572

63 N.H. 580

COLE

v. BOARDMAN.¹

Supreme Court of New Hampshire.

March 12, 1886.

Assumpsit upon two promissory notes, dated May 12, 1872, payable to the plaintiff, or bearer, in two months from date. The defense was payment. Trial by a jury.

The notes were given as the price of 25 shares of the stock of the Swain Turbine Company of Lowell, Mass. These shares were pledged by the defendant to the plaintiff, at the time, as collateral security for the notes. In 1874, a new corporation, the Swain Turbine & Manufacturing Company, took the business and assets of the Swain Turbine Company, and two and a half shares in the new company were issued to the stockholders in the old company for each share in that company. The 62 shares in the new company which were issued to the defendant were by him pledged, in 1874, to the plaintiff as security for the notes, in the same manner as the 25 shares were before, and the plaintiff has ever since held both the stock and the notes. The defendant's testimony was that in 1875, by agreement with the plaintiff, he gave up to him all claim to the stock, in full payment of the notes. The plaintiff's evidence contradicted this. As tending to show the probability of payment the defendant put in evidence the close business relations of the parties, and, subject to exception, he was permitted to show by oral testimony that at the time the notes were given, and for a long time afterwards, he had property subject to attachment from which the notes might have been collected; that he owned certain real estate in Lowell and elsewhere, and what incumbrances were upon it.

The defendant claimed that this suit was brought to injure him, and compel him to satisfy large claims of creditors of the company now in suit in Massachusetts; and, as sustaining this position, he was permitted to testify, subject to exception, that Cole & Nichols, a partnership of which the plaintiff was a member, and others with them, had, before this action was commenced, brought suits, now pending in Massachusetts, against him, for contribution upon notes against the Swain Turbine & Manufacturing Company, indorsed by him, and by Cole & Nichols and others, who had paid or assumed the notes, and that all his property in that state had been attached in those suits. For the same purpose, and subject to exception, he was allowed to put in evidence the record of a judgment, in favor of Cole & Nichols against the Swain Turbine & Manufacturing Company, rendered in this state in 1882, for $1,235.08, on account of money expended for the corporation. The judgment was given by default, by instruction of the directors, one of whom was Cole. The defendant, Boardman, was managing agent of the corporation, and owned two-fifths of the stock; and he claimed that this judgment was fraudulently obtained for the purpose of injuring him. Subject to exception he was also permitted to put in evidence the writ, docket entry, and specification, in an action, Cole & Nichols v. Boardman, brought in 1882, and now pending in this state, for the recovery of the amount due on 33 promissory notes, which were made by the Swain Turbine & Manufacturing Company, and indorsed by the defendant and by Cole & Nichols. The defendant, subject to exception, testified that the plaintiffs in the last-named suit had been enjoined by the court against prosecuting it further until a bill in equity, in Massachusetts, against them, to adjust the claims against the corporation, had been heard there. The verdict was for the defendant, which the plaintiff moved to set aside on the ground that it was against the evidence, and that the evidence excepted to must have prejudiced the jury against the plaintiff. The motion was denied.

C. H. Burns and Geo. B. French, for plaintiff.

Copeland & Jones, for defendant.

The defendant introduced positive evidence of payment, which the plaintiff endeavored to contradict. And to supplement this positive testimony he also put in evidence all the circumstances of the business relations between the parties, and all the transactions accompanying the giving and paying of these notes, and the bringing of this suit, as tending to show that it was more probable than not that payment had been made. And for such purpose, evidence of all the circumstances, the residence, the means, the relations existing between the parties, the lapse of time, etc., are clearly competent and admissible; for "payment may also be presumed or inferred by the jury from sufficient circumstances." 2 Greenl. Ev. (14th Ed.) 526, 527, note b; Best, Ev. § 406; Grantham v. Canaan, 38 N. H. 268. Regarding the evidence of ownership of property by the defendant, this was clearly competent; for it would be most unreasonable to suppose that, with property thus exposed to attachment, and with no new promise made or alleged, this plaintiff would allow his notes to outlaw, and take no steps to collect them, if he had believed them to be due. Whart. Ev. 1363. But, if the evidence as to the means of the defendant be held to be incompetent, it is immaterial; and the admission of immaterial evidence furnishes no ground for a new trial, unless the court can see that it has unfavorably prejudiced the jury against the party excepting. Jewett v. Stevens, 6 N. H. 80; Hamblett v. Hamblett, 6 N. H. 333-342; Cook v. Brown, 34 N. H. 460.

It was a matter of discretion with the presiding justice to set aside the verdict or let it stand. By his denial of the motion he found, as a matter of fact, that the evidence excepted to did not unfavorably prejudice the jury against the plaintiff. And the plaintiff is, by this denial of the motion, precluded from now claiming that the evidence did unfairly influence the jury. Sanford Co. v. Wiggin, 14 N. H. 441; Bowman v. Sanborn, 25 N. H. 87.

It was certainly competent to show, by all the testimony bearing upon the question, that the action was not brought bona fide, and that the plaintiff had a motive in setting up a claim which he knew was unjust and without foundation. Acts and declarations showing a fraudulent purpose, if connected in point of time, are admissible as throwing light upon the general object of the party, though they do not relate to the property or transaction in question. Lee v. Lamprey, 43 N. H. 15; Angler v. Ash, 26 N. H. 109; Whittier v. Varney, 10 N; H. 291; 1 Greenl. Ev. 256. It was a part of our defense that the plaintiff brought his action with the ulterior purpose of harassing the defendant, and of driving him to a settlement of other suits. The motive of the plaintiff, in this view, became material; and we showed it by evidence which, though not relating to the notes in question, was connected in point of time with the transactions out of which this suit grew and threw light upon the general object and purpose of the plaintiff in his later dealings with the defendant. Such evidence must be admissible. Angler v. Ash, supra; 1 Greenl. Ev. 79, 80.

SMITH, J. Evidence that the plaintiff's firm and other creditors of the defendant brought suits against him in Massachusetts, still pending, had no tendency to show that the present suit was not brought in good faith, or was brought for the purpose of oppression. No evidence is reported tending to show that the Massachusetts suits were not properly brought, nor that the claims of the plaintiffs in those suits are not valid claims against the defendant. There is no presumption that the suits were brought to oppress the defendant, or were not brought in good faith. Fraud is never presumed. Indeed, the case finds that the plaintiffs in those suits paid, as assumed, the notes which had been indorsed by themselves and the defendant. It is not shown that the...