Howe v. Raymond

• Decision Date: 23 July 1901
• Citation: 74 Conn. 68,49 A. 854
• Court: Connecticut Supreme Court
• Parties: HOWE v. RAYMOND et al.

49 A. 854

74 Conn. 68

HOWE

v. RAYMOND et al.

Supreme Court of Errors of Connecticut.

July 23, 1901.

Appeal from superior court. New London county; George W. Wheeler, Judge.

Action by Thomas Howe against George C. Raymond and others. From an order setting aside a verdict in favor of plaintiff, he appeals. Affirmed.

This action was brought by the plaintiff as the indorsee and holder of a note which read like this: "$933.33. Norwich, Conn., Feb. 2, 1895. One year after date, for value received, we, or either of us, promise to pay H. P. Reynolds or bearer nine hundred and thirty and 83/100 dollars, at some national bank, with interest at 6% per annum; interest payable annually." The note was signed by the defendants, and was indorsed by H. P. Reynolds. The defendants in their answer said the note was without consideration, and that the plaintiff was not an innocent holder of the note. This the plaintiff denied. The case was tried on this issue, closed to the jury. The plaintiff had a verdict. The court on motion set the verdict aside. The plaintiff has appealed, alleging that the court erred in so doing.

Hadlai A. Hull and William F. M. Rogers, for appellant.

Donald G. Perkins, Charles F. Thayer, and Joseph T. Fanning, for appellees.

ANDREWS, C. J. (after stating the facts).

It appeared on the trial that the defendants had, prior to the execution of the note on which the suit was brought, entered into a written agreement with H. P. Reynolds, the payee, of the following terms and tenor: "Norwich, Conn., Dec. 6, 1894. We, the undersigned subscribers, realizing the necessity of improving our stock, do hereby agree to pay H. P. Reynolds $100 for each share in the Cleveland Bay Horse Company that is now being formed at Norwich and vicinity, to buy one imported stallion of H. P. Reynolds, of Franklinville, N. Y. Capital stock, 2,800. No. of shares, 28. Name of horse, Knowl Reward 871. Payments to be made, cash, or one-third in one year, one-third in two years, and one-third in three years, secured by joint notes, with interest,"—signed by all the defendants. The note in suit was given pursuant to the terms of that agreement. The contract then evidenced by the note was entered into as security for the contract evidenced by said written agreement; that is. the note was accessory to the said written agreement; in other words, the said written agreement was the principal contract, and the note was an accessory one. It appeared, also, —indeed, it was conceded by the plaintiff,— that the Cleveland Bay Horse Company named in the said agreement was never formed, and that no shares of stock in such company were ever issued. Whether this was his fault, or that of the defendants, was in dispute. They claimed that it was his, and that the note, therefore, on which the suit was brought never became a binding contract between the makers and the payee. There can be no accessory contract unless there is a principal one. This is the well-established law. Eising v. Andrews, 66 Conn. 58, 33 Atl. 585, 50 Am. St. Rep. 75, and the authorities there cited. Especially, see Ferry v. Burchard, 21 Conn. 603; Willey v. Paulk, 6 Conn. 74; De Forest v. Strong, 8 Conn. 522; Bull v. Allen, 19 Conn. 101; Glazier v. Douglass, 32 Conn. 393; Candee v. Skinner, 40 Conn. 404. One Spang was the agent of Reynolds in procuring signers to the said agreement and to the note. There was a good deal of evidence tending to prove that Spang represented to the defendants—some or all of them— that the note would not be negotiated, and that they would never be called upon to pay the same otherwise than as security for the said shares of stock. The defendants in their answer alleged that the plaintiff, at and before the time he became the owner of the said note, had notice of the infirmity and invalidity of the same, and of the equities and defense thereto as between the defendants and the said Reynolds, and took the same in bad faith, and was not the innocent holder thereof in good faith and for value. The verdict of the jury negatived these allegations. The judge thought the verdict was against the evidence, and set it aside. It was upon this part of the case that both parties laid the most stress.

It is true that the jury is a tribunal which is regarded by the law as one especially fitted to decide controverted questions of fact upon evidence. The jury decides how much credibility is to be given to each witness, what weight justly belongs to the evidence, and, between the statements of hostile and contradictory witnesses, where the truth is; and if the verdict to which they have agreed is a conclusion to which 12 honest men, acting fairly and intelligently, might come, then their verdict is final, and cannot be disturbed. In such a case, if the trial judge should set aside their verdict, he would be himself in error. He would pass the true bounds of his own function, and invade the province of the jury. It is only when the verdict is manifestly and palpably against the evidence in the caseso much as to indicate that the jury was swayed by passion, by ignorance, partiality, or corruption, that it should be set aside on that ground, and a new trial be granted. Lewis v. Healy, 73 Conn. 136, 46 Atl. 869. There are, to be sure,...