Jordan v. Wallace

• Decision Date: 11 March 1892
• Citation: 32 A. 174,67 N.H. 175
• Parties: JORDAN v. WALLACE.
• Court: New Hampshire Supreme Court

32 A. 174

67 N.H. 175

JORDAN

v. WALLACE.

Supreme Court of New Hampshire. Coos.

March 11, 1892.

Assumpsit by Royal W. Jordan against Anson H. Wallace for damages for breach of contract to cut and yard timber. The defense was that the contract was procured by false representations of the plaintiff, calculated and intended and having the effect to deceive the defendant, and render his examination of the situation and quantity of the timber less complete, and therefore the defendant rightfully rescinded it. Verdict for the defendant.

The defendant's counsel, in his argument to the jury, in speaking of the plaintiff, said: "I don't believe that he ever lived an honest hour in his life, when he was not either plotting and planning to beat somebody individually, or to go into bankruptcy and beat everybody collectively." To this the plaintiff objected, and the court stopped the counsel, stating that his remarks were improper, and not authorized by any evidence in the case; and told the jury to disregard them. Thereupon the defendant's counsel said he withdrew the objectionable remarks, and asked the jury not to regard them. The plaintiff insisted on his exception, claiming that the mischief was not cured by the apology of the counsel. In the instructions to the jury the court again reminded them that they should regard the evidence only in making up their verdict, and that the objectionable remarks of counsel should have no effect The jury having returned a verdict for the defendant, the plaintiff moves to set it aside because of the remarks excepted to in the argument of the defendant's counsel. Thereupon the defendant produces the affidavits of all the jurors upon the panel, to the effect that the remarks of counsel objected to had no influence whatever upon their minds in determining the verdict rendered. The affidavits are filed, and may be referred to. If the affidavits of the jurors can be considered, the court finds that the objectionable remarks of the defendant's counsel were harmless. If the affidavits of the jurors cannot be considered, the court is unable to say that the verdict was not affected by the statement objected to from the fact that the impression of the court upon the evidence was that the verdict would be for the plaintiff.

J. H. Dudley, for plaintiff.

T. F. Johnson, for defendant.

BLODGETT, J. It is not open to reasonable doubt that the denunciatory comments of defendant's counsel upon the character of the plaintiff were made...