Noyes v. Parker

• Decision Date: 20 April 1892
• Citation: 24 A. 12,64 Vt. 379
• Parties: NOYES, FRENCH & FICKETT v. EDWARD J PARKER
• Court: Vermont Supreme Court

24 A. 12

64 Vt. 379

NOYES, FRENCH & FICKETT v. EDWARD J PARKER

Supreme Court of Vermont

April 20, 1892

JANUARY TERM, 1892

Assumpsit. Plea, the general issue. Trial by jury at the September term, 1891, Tyler, J., presiding. Verdict and judgment for the plaintiffs. The defendant excepts. The case appears in the opinion.

Judgment affirmed.

H C. Adams, for the defendant.

Present ROSS, Ch. J., TAFT, START AND THOMPSON.

OPINION

THOMPSON

The defendant contends that the burden of proof was on the plaintiffs to prove that the defendant did not deliver the thirty tubs of butter either on the cars or at the railroad station, whichever the jury found the place of delivery to be, and that the court below neglected to so charge the jury. Without deciding on which party this burden rested, we think the court instructed the jury that this burden was on the plaintiffs. Some time prior to June 13 1889, the parties made a contract by which the defendant was to sell and deliver to the plaintiffs at Georgia, Vt., either on the cars as claimed by the plaintiffs, or at the railroad station, as claimed by the defendant, two hundred tubs of butter of fifty pounds each at nineteen cents a pound. It was conceded that some time between that date and the 13th day of June, the defendant delivered to the plaintiffs one hundred and seventy tubs of butter and some cheese, and that on the last named date he drew upon the plaintiffs through the Howard National Bank, Burlington, Vt., for $ 1,900, which draft was honored and paid by the plaintiffs. The defendant's evidence tended to show that he delivered the remaining thirty tubs of butter to the plaintiffs pursuant to his contract, before he drew the draft, while, on the other hand, the evidence of the plaintiffs tended to prove that he never delivered the thirty tubs of butter, and that consequently, there was an over-draft of $ 285. This action was brought to recover this alleged over-draft. In stating to the jury the case as made by the plaintiffs, the Court said: "The plaintiffs claim that $ 285 of the $ 1,900 was over-draft: that it was for thirty tubs of butter which they claim the defendant never delivered, and which they say they never received. If that is true, the defendant received $ 285 that did not belong to him, and the law implies a promise on his part to repay it." Thus the Court clearly stated to the jury that the plaintiff's right of recovery rested upon an implied promise which the law only raised in case the defendant had not delivered the thirty tubs of butter. The Court then stated to the jury the respective claims of the defendant and plaintiffs in regard to the delivery and non-delivery of the butter, and in connection therewith said: "The issue in this case is whether or not the defendant delivered the thirty tubs of butter. The plaintiffs having brought their suit; the law casts upon them the burden of making out their case by a fair preponderance of the evidence. There is no technical meaning to the term preponderance of the evidence; it simply means that the burden is cast upon them to support their claim by a greater weight of evidence than the evidence adduced against their claim by the defendant; that is, the evidence produced by the plaintiffs must in your judgment weigh at least a little more than the evidence produced by the defendant against that claim. If the evidence, in your judgment, is just evenly balanced, the plaintiffs would not be entitled to recover. Their evidence must weigh a little more at least than the evidence on the part of the defendant. Then, with this rule in mind, this is the question for you to determine in this case and find your verdict accordingly,--was there a delivery by the defendant of these thirty tubs of butter according to the contract between himself and the plaintiffs?" The jury were thus clearly and specifically instructed that in order to entitle the plaintiffs to recover, they must find that the weight of evidence was in favor of the plaintiffs' claim that the thirty tubs of butter were not delivered. This exception cannot, therefore, avail the defendant.

II. It was not error for the Court to refuse to instruct the jury that there was no evidence in the case tending to show fraud on the part of the defendant. The plaintiffs did not put their right of recovery on the ground of fraud on the part of the defendant. The sole question was whether or not the defendant delivered the thirty tubs of butter according to the terms of his contract. If he had not delivered the butter, the plaintiffs were entitled to recover. If he had delivered it, the plaintiffs were not entitled to recover, although they never received it.

III. The defendant was not entitled to have the Court comply with his request to instruct the jury that "testimony tending to show that a witness has made statements out of court that contradict his testimony in court, is to be weighed with caution."

"The admissibility of evidence is a matter of law, but the weight or value of evidence is matter of fact." 1 Best Ev. (Wood's Ed.) s. 80, star page 101. The admissibility and rejection of evidence, and whether there is any evidence to go to the jury, are questions of law for the decision of the court; whether there is sufficient evidence, is for the jury. On the other hand, the decision of the facts in issue is the exclusive province of the jury. 1 Best Ev. (Wood's Ed.) s. 82, star pages 103-105. This principle is illustrated by evidence of dying declarations. It is for the Court to determine whether the declarations were made under such circumstances as to constitute them legal evidence. When the evidence is admitted, its credibility is solely a question for the jury, who are at liberty to consider and weigh all the circumstances under which the declarations were made and to give them only such credit as on the whole they think they deserve. 1 Greenl. Ev. (12th Ed.) s. 160. This request required the court to state to the jury as a matter of law that a certain kind of testimony was to be weighed with caution. The law does not give this, nor any other kind of testimony, if believed by the jury to be true, any particular weight or lack of weight as compared with other testimony. While the court, in its discretion, may give certain cautionary instructions in regard to some kinds of testimony, in so doing, it "must be careful not to trench upon the exclusive province of the jury in determining the credibility of particular witnesses, or the degree of credit to be given to particular elements of the evidence. He may instruct them as to the rule but not as to the weight of the evidence; that is to say, he should not instruct them as to the relative weight of the testimony, or the credibility of the witnesses." 2 Thomp. Tr. s. 2420. In support of his contention, the defendant cites 1 Greenl. Ev. s. 200, in which the subject of verbal admissions is discussed. We do not think the learned author intended that section to be taken as a statement of a rule of law governing the weight to be given to evidence of verbal admissions. On the contrary, it is simply a philosophical discussion of the fact that such evidence is subject to much imperfection and mistake, consisting as it does in the mere repetition of oral statements, and for the reason that the party himself may either have been misinformed or not have expressed clearly his own meaning, or that the witness may have misunderstood him.

While it would have been proper for the court in its discretion to have called the attention of the jury to the infirmities which in fact often attend evidence of the alleged oral admissions of parties, or alleged contradictory statements of witnesses out of court, yet being a matter of discretion, no exception lies to the failure of the court to give such cautionary instructions. State v. Roe, 12 Vt. 93; Durgin v. Danville, 47 Vt. 95; Doon v. Ravey, 49 Vt. 293.

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