John Horicon v. Estate of Delphine Langlois

• Decision Date: 03 May 1949
• Citation: 66 A.2d 16,115 Vt. 470
• Parties: JOHN HORICON v. ESTATE OF DELPHINE LANGLOIS
• Court: Vermont Supreme Court

66 A.2d 16

115 Vt. 470

JOHN HORICON v. ESTATE OF DELPHINE LANGLOIS

Supreme Court of Vermont

May 3, 1949

February Term, 1949.

Trial.

1. It is within the discretion of the trial court to permit a party to withdraw a rest and introduce further evidence, and the ruling in that regard is to be disturbed only if an abuse of discretion is made to appear.

2. Where the issue is whether a note, originally secured by a chattel mortgage, which has since been discharged, has been paid, and there is no evidence that the mortgaged property had been dissipated before the date of the discharge, the exclusion of evidence that the maker has not paid his taxes and another specified obligation is a discretionary ruling, and, under the circumstances, not erroneous.

3. A ruling lying in the discretion of the court will, the contrary not appearing by the record, be presumed to have been made in the exercise of such discretion.

4. Testimony may be of such slight and inconclusive character that its exclusion, if error, will be treated as harmless.

5. A ruling as to the admission of evidence must be tested by the state of the case at the time the ruling is made.

6. Where evidence is wrongfully excluded but it appears that the proponent has through other uncontradicted evidence had the substantial benefit of the excluded testimony, no error results.

7. A motion for a directed verdict is to be granted whenever it would be the duty of the court, in the exercise of a wise judicial discretion, to set aside a contrary verdict if rendered, and this principle applies where the evidence on behalf of one party so preponderates over that of his opponent that it would be an abuse of discretion to refuse to set aside a verdict for the latter.

8. Even though evidence is undisputed, it may be of such a character as to afford ground for opposing inferences of fact and, if so, there is a jury question.

9. While the cancellation of a mortgage on record is not conclusive as to the payment of the debt secured thereby and is open to explanation, it is presumptive evidence that the primary obligation has been extinguished.

10. The rule applicable to a party who fails to call witnesses exclusively in his control does not apply to a defendant who introduces no evidence at all.

11. Where an exception has been waived by failure to brief it in the exceptant's original brief, it cannot be presented in his reply brief, the function of which is limited to answering the contentions made in the brief of the opposing party.

12. On appeal the record is to be construed against the excepting party, who has the burden of producing a record which makes it affirmatively to appear that harmful error has been committed.

13. An instruction to the jury which permits the jury to deliberate upon and to decide an issue not in the case is erroneous.

14. The burden of proof on the issue of payment rests upon the person claiming the payment.

APPEAL from commissioners disallowing claim against an estate. Trial by jury, Grand Isle County, April term, 1948. Cushingo, J. presiding. Verdict and judgment were for the defendant. Reversed and remanded.

judgment reversed and cause remanded.

Martin S. Vilas and Nicholas A. Morwood, for the plaintiff.

Leary & Leddy, for the defendant.

Present: MOULTON, C. J., SHERBURNE, JEFFORDS and CLEARY, JJ., and BLACK, Supr. J.

OPINION

MOULTON

The plaintiff seeks to recover from the defendant estate upon a witnessed promissory note for $ 941.38, dated July 31, 1936 payable to him one year after date, which was secured by a chattel mortgage duly recorded, covering twenty-two cows, five yearlings, seven calves, one stallion, one black mare and sixty tons of hay. The decedent died at an advanced age, on June 13, 1942. He was unable to read or to write, at least more than his name. The commissioners on his estate, to whom the plaintiff presented the note, disallowed the claim and an appeal was taken to the county court. The defendant pleaded the general issue and payment. Trial was had by jury with verdict for the defendant and the cause comes here on the plaintiff's exceptions.

The plaintiff introduced in evidence the note and the testimony of a witness showing its execution by the decedent. He also introduced the original chattel mortgage which was in the possession of the defendant and it was produced in court upon the plaintiff's demand. This instrument bore an unrecorded acknowledgment of discharge and satisfaction signed by the plaintiff, dated August 20, 1936. He also introduced a certified copy of warranty deed from the decedent to the plaintiff, of the same date as the note and chattel mortgage conveying certain land in the town of Alburgh. After this, the plaintiff rested, and the defendant moved for a directed verdict, which was overruled subject to exception. The defendant thereupon introduced no evidence and rested, after which the plaintiff was permitted to introduce the testimony of several witnesses to the effect that on various occasions the plaintiff had made repeated demands upon decedent to pay the note, and that the latter had said that he did not have the money to do so, that he owed others besides the plaintiff and that he could not pay unless he sold some cows. One witness testified that the decedent paid the sum of $ 30 which the plaintiff indorsed upon the note, dated August 20, 1938. Also the plaintiff introduced a certified copy of the chattel mortgage, taken from the town clerk's records, which did not contain the discharge and satisfaction of August 20, 1936, as on the original, but another discharge and satisfaction signed by the plaintiff and witnessed, dated February 26, 1941, and duly recorded as of that day. As to this, one of the plaintiff's witnesses testified that the discharge and satisfaction was executed and caused to be recorded by the plaintiff as an "accommodation" to the decedent and at the latter's request.

The defendant excepted to the reception of the above testimony on the ground that it was not rebuttal, the plaintiff having rested and no evidence having been introduced for the defense, and argues that the motion for a directed verdict should be granted, and the evidence claimed to have been erroneously admitted, disregarded. It is not argued that the evidence was otherwise incompetent.

It was within the discretion of the trial court to permit the plaintiff to withdraw his rest and to introduce further evidence and the ruling is reviewable only if an abuse of discretion is made to appear. Mott v. Bourgeois, 109 Vt. 514, 519, 1 A.2d 704; Perkins v. Vermont Hydro-Electric Corporation, 106 Vt. 367, 407, 177 A. 631; Paska v. Saunders, 103 Vt. 204, 214, 153 A. 451. No claim is made that the defendant was taken by surprise, and there was no request for time in which to meet the evidence as in Phelps v. Utley, 92 Vt. 40, 43, 101 A. 1011. No abuse of discretion is shown. It is conceded in the defendant's brief that if the testimony was properly in the case, the issue of payment was for the jury.

Two exceptions briefed by the plaintiff may be considered together. They were taken to the exclusion of the testimony of Raymond Brayton, tax collector of the town of Alburgh, that the decedent's taxes for the years 1935, 1936 and 1937 were unpaid, and the exclusion of the testimony of William Lockwood, President of the Howard National Bank and Trust Company of Burlington, that a debt owed by the decedent to the Roland Phelps Estate, of which the bank was the executor, incurred prior to 1936, had not been paid. This evidence was offered as tending to show that the decedent was insolvent and could not have paid the note in suit.

A person's financial condition may be relevant, under some circumstances, upon the question whether a claimed contract calling for the disbursement of money has in fact been entered into by him. Kimball v Locke, 31 Vt. 683, 684-5; Frost v. Admr. of Frost, 33 Vt. 639, 649; Beckley v. Jarvis, 55 Vt. 348, 349; Blaisdell et al Admrs. v. Davis, 72 Vt. 295, 306-7, 48 A. 14. Here the making of the contract, i.e. the note, is not contradicted. The issue is whether it has been paid. The defendant relies upon the holding in First National Bank of Xenia v. Stewart, 114 U.S. 224, 5 S.Ct. 845, 849, 29 L.Ed. 101, 104, that proof of the insolvency of a debtor is not competent to show non-payment of a particular debt, since "it is common for both solvent and insolvent men to pay some of their debts and to leave some unpaid." But the better rule, as we think, is stated by the late Professor Wigmore (1 Wigmore on Evidence, para. 89), that the fact that a man is destitute of property or other resources is relevant to show the improbability that he has paid a given debt. However, this statement is qualified later on in the same treatise (Vol. 1, para. 224) as follows: "Nevertheless, a line is to be drawn; for the mere failure, (for example) to pay a specific debt may be open to so many other explanations than a total lack of means... that it would have no appreciable probative value. There is room for much variety of circumstance in such evidence, and the discretion of the trial court should control." Adopting this principle and applying the maxim that a ruling lying in the discretion of the court will, the contrary not appearing by the record, be presumed to have been made in the exercise of such discretion (Lancour v. Herald and Globe Association, 112 Vt. 471, 474, 28 A.2d 396; Parkhurst v. Healy's Estate, 97 Vt. 295, 296, 122 A. 895), we do not find error in the exclusion of the evidence. The failure of the decedent to pay his taxes for the designated years or a debt to the bank as executor, would have little or no probative effect upon the question of the payment of a secured...