McDowell v. Thomas McDowell's Estate
| Decision Date | 06 August 1903 |
| Citation | 56 A. 98,75 Vt. 401 |
| Parties | ROBERT J. McDOWELL v. THOMAS McDOWELL'S ESTATE |
| Court | Vermont Supreme Court |
May Term, 1903.
APPEAL FROM COMMISSIONERS. Declaration, general assumpsit. Pleas the general issue, payment, and statute of limitations. Trial by jury at the December Term, 1902, Caledonia County, Watson J., presiding. Verdict and judgment for the claimant. The defendant excepted.
Judgment affirmed.
May & Simonds and B. E. Bullard for the defendant.
Present TYLER, MUNSON, START, STAFFORD and HASELTON, JJ.
This was an appeal from the decision of commissioners appointed by the Probate Court for the adjustment of claims. The claim presented consisted of a promissory note bearing several indorsements in the handwriting of the payee, and certain charges upon book against which various sums had been credited. The plea included payment and the statute of limitations.
The defendant excepted to the admission of the last two indorsements, and to the failure to charge that both payments must be established to permit a recovery on the note. The Court received and submitted these indorsements as evidence tending to show payment, but not as evidence sufficient in itself to establish payment; and charged that the plaintiff could recover upon a finding of the payment evidenced by the last indorsement. But if the payment indicated by the preceding indorsement was not found, the note was barred by the statute when the last indorsement was made, and the defendant contends that an indorsement made by the payee upon a note already barred is not evidence. It is said that an indorsement so made is a declaration in the payee's own interest, and that V. S. 1216 ought not to be held to authorize the use of a self-serving declaration. But this provision was passed upon in Bailey v Danforth, 53 Vt. 504, and it was then considered, upon a full recognition of the distinction regarding the payee's interest, that an indorsement not written by the payor is evidence, whether made before or after the statute has run. We see no occasion to depart from this holding.
The plaintiff was a witness so far as to prove in whose handwriting his charges were. V. S. 1239. He produced his account with the deceased, and testified without objection that it was in his handwriting, and that both debit and credit items were made at the time of the transactions to which they related. The account was then received in evidence against the defendant's exception, and it is now insisted that the items of credit should have been excluded. It is not necessary to inquire how the matter is affected by the section referred to. The credits were not needed to save the charges from the statute of limitations, and the defendant cannot have been harmed by the fact that they were before the jury.
It was not error to exclude defendant's offer to show that the deceased had money on deposit to the plaintiff's knowledge. The evidence held to have been properly received in Strong v. Slicer, 35 Vt. 40, was evidence given by the defendant of the pecuniary condition of both the plaintiff and himself. If this offer had included the further element that the plaintiff was in pressing need, the case referred to would have been in point. But the mere fact that the debtor has money which the creditor knows of is not evidence tending to prove payment.
The defendant was not entitled to a charge that the payments must...
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