Hillyer v. Dickinson

• Decision Date: 24 October 1891
• Parties: HILLYER et al. v. DICKINSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 502

28 N.E. 905

HILLYER et al. v. DICKINSON et al.

Supreme Judicial Court of Massachusetts, Worcester.

October 24, 1891

COUNSEL

Hopkins & Bacon, F.P. Goulding, and F.B. Smith, for plaintiffs.

E.B Stoddard and Rice, King & Rice, for defendants.

OPINION

ALLEN J.

The view no longer prevails that a party who has the burden of proof can retain a verdict in his favor by pointing to a mere scintilla of evidence, when on an examination of the whole case the court can find no substantial evidence to support it. It is not necessary, perhaps not possible, to lay down a precise formula of general application by which to determine whether the evidence in particular cases is sufficient or not. Where there is evidence proper to be weighed the jury is the proper tribunal to weigh it, subject nevertheless, to the power in the court to set the verdict aside as against the weight of evidence. But where the court can find no evidence which in its deliberate and ultimate judgment is entitled to be weighed, it must say so, and the jury should be instructed in terms that there is no evidence to support the burden of proof which rests upon the party. Evidence which merely raises a suspicion or a surmise or a conjecture is not enough to be entitled to be submitted to the jury. Chase v. Breed, 5 Gray, 440; Fay v. Insurance Co., 16 Gray, 455, 461; Denny v. Williams, 5 Allen, 1; Com. v. Railroad Co., 10 Allen, 189; Butterfield v. Railroad Corp., Id. 532; Brightman v. Eddy, 97 Mass. 478, 481; Markey v. Insurance Co., 103 Mass. 78, 87; Brooks v. Somerville, 106 Mass. 271, 275; King v. Nichols, 138 Mass. 18; Carter v. Goff, 141 Mass. 123, 5 N.E. 471; McCreary v. Railroad Co., 153 Mass. 300, 26 N.E. 864. The question whether there is evidence which should properly be submitted to the jury is sometimes a very nice one, since the court is not at that stage of the proceedings to pass upon the weight of the evidence, but only to determine whether there is any evidence sufficient to go to the jury. Forsyth v. Hooper, 11 Allen, 419; Smith v. Collins, 115 Mass. 388, 398; Heywood v. Stiles, 124 Mass. 275; Coolidge v. Smith, 129 Mass. 554; Lawless v. Railroad Co., 136 Mass. 1. In the present case we have been called on to consider whether the defendants introduced any evidence proper to be submitted to the jury to support their averment that the note in suit was procured by misrepresentations and fraud in respect to the amount of the indebtedness of Samuel F. Dickinson, or whether they introduced any such evidence of fraud on the part of the plaintiffs in promising to take back the wool which they had sold to Dickinson, and which still remained on hand as a part of his property. It is conceded that the burden of proof was on the defendants. On both of these points the whole of the material evidence is reported in the bill of exceptions, and an examination of it has led us to the conclusion that the plaintiffs were entitled to the instructions which they requested,--that there was no evidence in the case tending to show that they made any representations to the defendants regarding the indebtedness of Dickinson, except upon information; and also that there was error in submitting to the jury any question of fraud on the part of the plaintiffs in respect to their promise to take back the wool. The only interviews at which any representations were made were between Mr. Skinner, one of the plaintiffs, and Mr. Kellogg, agent for the plaintiffs, on the one hand, and the defendants on the other hand; Mr. Currier, a friend and witness of the defendants, having also been present at one of the interviews.

The material thing to be considered at the trial was whether Skinner & Kellogg made any representations as to the amount of the indebtedness of Samuel F. Dickinson as of their own knowledge. The jury were instructed, in substance, that if they made positive statements as of their own knowledge that his indebtedness did not exceed a certain sum, and if the statements were untrue, and were intended to deceive and did deceive the defendants, who were thereby induced to sign the note, then the fraud would be a defense to the note; but if they made no such statement as of their own knowledge then this ground of defense would fail. It is not necessary to repeat here the whole testimony in detail; but the testimony in reference to these representations is as follows: Mrs Dickinson, one of the defendants, testified that at the first interview she met Mr. Kellogg and Mr. Skinner with her son, Stuart, (the other defendant,) by appointment. "One of the gentlemen had a proposition to make to her. He said that they were her son's largest creditors, and that her son owed them about $32,000, and that he was only owing, as far as they could find out,--that Mr. Smith had told them,--only five or six thousand more,--might be $40,000 in all. The other creditors were only small creditors, amounting to five or six thousand dollars. In all, perhaps, it might amount to $40,000. They didn't--Mr. Smith didn't--know; they had no books. *** The next morning they met by appointment, and a Mr. Currier, a gentleman related by marriage to the Dickinson family, came in. They repeated before Mr. Currier the same statement,--that Samuel F. Dickinson owed them $32,000 for wool, and smaller creditors, which amounted to $5,000 or $6,000 more. Mr. Currier thought it over a minute, and said: 'If that is the case, I see no reason why you should not sign the note.' *** She further testified that she was induced to sign the note in controversy upon their statement of the indebtedness of her son, and that otherwise she should not have signed it. On cross-examination *** in regard to conversation with Messrs. Skinner & Kellogg at the first interview in the evening, she testified that they said that they were the largest creditors, and that they had been to the mill, and found how much, as they supposed, he was owing; and that they were the largest creditors. That [they] said Smith had told them that Samuel F. Dickinson was owing them $32,000 for wool, or a little more. The others were smaller sums. She further testified in regard to conversation in morning interview: *** 'They...