Harlow v. Lac Lair

• Decision Date: 05 January 1927
• Citation: 136 A. 128
• Parties: HARLOW v. LAC LAIR.
• Court: New Hampshire Supreme Court

136 A. 128

HARLOW

v. LAC LAIR.

Supreme Court of New Hampshire. Sullivan.

Jan. 5, 1927.

Exceptions from Superior Court, Sullivan County; Burque, Judge.

Assumpsit by Henry Harlow against Mamie Laclair.A motion for nonsuit was granted, and plaintiff excepts.Exception overruled.

Assumpsit upon the common counts, in addition to which the plaintiff filed the following specification:

"Specification.

"The plaintiff seeks to recover the full amount due him for his interest in one Chevrolet sedan, 1924 model, No. 2F58637, which he and the defendant owned in common, and this suit is to recover the value of his interest therein, to wit, $518, with interest from the date of the writ which the defendant promised to pay him,"

Trial by jury.At the close of the plaintiff's evidence the defendant moved for a nonsuit, upon the ground that, "if there was any trade at all, it was based upon an illegal consideration."The court granted this motion, and the plaintiff excepted.

The parties themselves were the only witnesses who testified.The plaintiff called the defendant as his first witness.Upon direct examination she testified as follows:

"Q.Now, you and Henry Harlow were good friends for quite a while, weren't you?A.Yes.

"Q.And you went around together?A.Not that I know.

"Q.Youwere a friend of his, weren't you?A.In a way, yes.

"Q.Yes, in a way.And he was your friend in a way, wasn't he?A.Yes, he was a friend.

"Q.In other words, you were his mistress, and he was your lover?A.Not that I know of.

"Q.Youdidn't know about that?A.No, 1 didn't."

Her version of the transaction in question was that the plaintiff let her have $538 to make up the purchase price of an automobile, upon her verbal promise to give him a mortgage back; that subsequently, after the plaintiff had placed an attachment upon the car, a mortgage and note for the above amount was duly executed; that still later the mortgage debt was paid and the mortgage discharged.The note, with the signature torn off, and the mortgage, bearing a record of its discharge, were produced in evidence.

The plaintiff testified on direct examination that he got to be "intimately acquainted" and "chummy" with the defendant in the spring of 1924, and that prior to the transaction in question they had owned a Buick automobile together, which was finally sold; that about a month afterward the defendant asked him to let her have the money to make up the price of a Chevrolet car, "and she teased so hard, finally I told her I would let her have the money.She promised we should have the car together and go anywhere I wanted to go with the car any time I wanted to.So Monday morning she came up to the house, and I had the money, and I gave it to her, and she went away"; that subsequently she failed to take him on a trip when requested, "and she kept right out of my sight, and I made up my mind that probably she was calculating to skip with my money, that is, beat me out of it.So I went and attached the car and got a mortgage on it."The mortgage was for $538, payable at the rate of $20 per month, and one payment of $20 was made upon it.

After this, the plaintiff testified:

"It ran along a little while, and she came over to the house, and she said she didn't think she was going to be able to pay any more; that her friend that she was getting money off from was out of a job, and she couldn't pay it.She wished she had done as she agreed, * * * and she kept coming over to the house right along after that when she got her car put up.She came over to the house, and she kept coming right along, and said she wished she had done as she agreed—we would have the car together, and she couldn't pay for it.'Well,' I says, 'as long as you can't pay for it and you're willing to do as you agreed, we will have the car together.'So we went along in that way for a while."In regard to the surrender of the note and mortgage, he testified as follows:

"Well, she come to me and she says, 'I have been doing as I agreed, ain't I?'I says, 'Yes, no fault to find with you.''Now,'she says, 'you have got some children, and,'she says, "if anything should happen to you, they would come and take the car away.'I says, 'Most likely they would if they didn't know the trade.''Well,'she says, 'you ought to give me that mortgage, and,'she says, 'we will have the car together just the same.'Well, I suppose I got a little foolish.I thought she was going to do as she agreed, she had all winter that far, and I gave her the mortgage.* * * I signed my name with a lead pencil, and she went away with it."

He denied that the defendant paid him any money when the mortgage was discharged.Upon cross-examination the plaintiff testified as follows:

"I didn't run a car.I don't like to run a car."Q.Then what did you buy it for?A.I bought it because she liked to run a car, and she wanted to go in company with me, and I could ride.

"Q.She was going to live with you like a man —A.No, I don't mean that—

"Q.Then there wasn't to be any illicit relations between you two?You know what that means?A.Yes, there was.

"Q.Was that a part of the bargain, that this was going right along in the same old way?A.That wasn't a part of the bargain.The understanding was that she could go to ride— * * * "Q.Now, Mr. Harlow, did you have a little proposition with this lady?You claim that she was sort of to be your mistress?A.Well, we had a little proposition; yes, sir.

"Q.And if it hadn't been for that you wouldn't have had anything to do with her automobiles, would you?Be honest.A.Oh, yes.

"Q.That was what done the trick?A.That wasn't all wholly.That went with it.

"Q.That was sort of important, wasn't it?A.Yes.

"Q.Now, everything went along all right until that end of the bargain sort of broke down?That was really the trouble, wasn't it, Mr. Harlow?A.No, sir.

"Q.Wasn't it?A.She came to see me all winter until she got ready to get out the car, and then she didn't come near me.

"Q.Then you said everything was all lovely until she got ready to get out the car?A.Yes.

"Q.Then just as soon as she gets out the car, things change?A.She wouldn't look at me.I thought that had changed some."

Henry N. Hurd, of Claremont, and Raymond Trainor, of White River Junction, Vt., for plaintiff.

Barton & Shulins and J. M. Barton, of Newport, for defendant.

BRANCH, J.The meaning of the plaintiff's testimony above set forth is clear beyond question.He admitted upon cross-examination that, when the car was purchased, illicit relations between him and the defendant were contemplated; that he had a "little proposilion" with the defendant by which she was to be his mistress; and, while this was not "wholly" what "done the trick," it was "sort of important."The circumstance that when questioned regarding these matters he at first denied the facts which he later admitted only added to the convincing force of the admissions when they were finally made.

Furthermore, the cross-examination is entirely consistent with the direct examination, for the direct examination is full of references to the defendant's "doing as she agreed" and "coming over to the house"—the meaning of which, if at any time doubtful, was elucidated by the disclosures of the cross-examination.The only sensible interpretation of plaintiff's testimony is that he admitted that an important part of the consideration for the financial help which he gave to the defendant in the purchase of the automobile in question was her agreement to serve as his mistress.If this admission binds the plaintiff, and is to be accepted as conclusively establishing the fact admitted, it follows that the ruling of the trial court was correct.

The plaintiff argues that, in spite of this admission, he was entitled to go to the jury, because "the defendant's testimony squarely controverts this.She testified clearly that such relation was not the consideration, because she said it did not exist.This, on the view most favorable to the defendant, raised a question in which the plaintiff had the right to take the judgment of the jury.* * * The apparent conflict between the testimony of the plaintiff and the witness Laclair should be resolved in favor of the plaintiff."

It is undoubtedly the general rule in this state that upon a motion for a nonsuit or a directed verdictthe plaintiff is entitled to have the case considered upon that interpretation of the evidence which is most favorable to him.Burke v. Railroad, 82 N. H. 350, 134 A. 574;Janvrin v. Powers, 79 N. H. 44, 104 A. 252;Williams v. Duston, 79 N. H. 490, 111 A. 690;Weeks v. Company, 78 N. H. 26, 95 A. 658.

The operation of this rule is not limited to the testimony of outside witnesses, but applies to that of parties as well."There is no sound reason why the familiar doctrine that a party may contradict, though not impeach, his own witness, should not, if the circumstances are consistent with honesty and good faith, be applied when he is himself the witness.* * * In other words, the law recognizes the fact that parties, as well as other witnesses, may honestly mistake the tenth, and requires juries to find the facts by weighing all the testimony, whatever may be its source."Hill v. Railway, 158 Mass. 458, 33 N. E. 582.Thus, in Seaver v. Railway, 78 N. H. 584, 97 A. 220, it was held that, where the testimony of the plaintiff was conflicting, she was entitled to the most favorable interpretation of it, and in Hurlburt v. Company, 76 N. H. 469, 84 A. 41, it was held that the plaintiff was entitled to the most favorable interpretation of an equivocal statement which might or might not be construed as an admission.

Does it follow from this rule that a plaintiff of average intelligence, in full possession of his faculties, who testifies to facts peculiarly within his knowledge, which, if true, utterly destroy his case, has a right to go to the jury and seek a verdict based...