Farrington v. Jennison

• Decision Date: 20 July 1895
• Citation: 67 Vt. 569,32 A. 641
• Parties: FARRINGTON v. JENNISON.
• Court: Vermont Supreme Court

32 A. 641

67 Vt. 569

FARRINGTON

v. JENNISON.

Supreme Court of Vermont. Caledonia.

July 20, 1895.

Exceptions from Caledonia county court; Munson, Judge.

Assumpsit by Francis Farrington against P. J. Jennison. There was a judgment for plaintiff, and defendant excepts. Reversed.

The plaintiff claimed to recover upon certain promissory notes given by the defendant to . EW. Farrington or bearer, and transferred by the said Farrington to the plaintiff. The defendant filed a specification under his plea in offset of certain sums which he claimed to have paid to the said E. W. Farrington in his lifetime, but which had not been indorsed upon the notes, and the only question litigated was as to whether these payments had been made. Upon the trial, the defendant conceded the execution of the notes, and claimed the right to begin and close the argument to the jury. This the court denied, and the defendant excepted. It appeared that E. W. Farrington had deceased before the trial. The plaintiff was improved as a witness to certain conversations had with the defendant in the lifetime of the said E. W. Farrington in reference to these payments which the defendant claimed he had made upon the notes. The defendant thereupon offered himself as a witness in reference to these same conversations. The plaintiff objected that he was incompetent, for the reason that the other party to the cause of action on trial was dead, and the court so ruled, and excluded the evidence upon the exception of the defendant. The plaintiff introduced a note from, the defendant to the said E. W. Farrington, upon which were certain indorsements. This note was outlawed and was not in suit, but the plaintiff was allowed to show its execution and to put the note in evidence, against the exception of the defendant, upon the ground that the note and indorsements bore upon the claim of the defendant as to the payments which he pretended to have made. The plaintiff was improved as a witness in reference to certain conversations in the lifetime of E. W. Farrington in reference to this note and the payments made upon it. Thereupon the defendant offered himself as a witness in reference to these conversations, but his testimony was excluded, upon the ground that the other party was dead, to which he excepted. The jury found that the defendant had paid upon the notes some $300 more than the plaintiff admitted, and for this reason the defendant moved the court to apportion the costs. This motion the court denied, and the defendant excepted.

W. P. Stafford, for plaintiff.

J. P. Lamson, for defendant.

ROSS, C. J. The cause of action in issue and on trial was the mortgage notes given by the defendant to E. W. Farrington, and by him transferred to the plaintiff. E. W. Farrington has now deceased. The defendant pleaded the general issue. This compelled the plaintiff to produce in evidence, and rely upon, his notes. This gave him the right to open and close the argument to the jury. The execution of these notes was not contested. The contention was in regard to whether certain sums claimed by the defendant to have been paid by him to E. W. Farrington, to be applied upon the notes in suit, had been so paid, and not indorsed by E. W. Farrington. The case does not disclose any item claimed by the defendant which would entitle him to recover under his plea in set-off. The items which the defendant claimed to have allowed him were, on his evidence, payments on these notes. If made as payments, it was immaterial whether they had been indorsed as such. When the defendant established that he delivered any...