Paska v. Saunders
| Decision Date | 07 January 1931 |
| Citation | 153 A. 451 |
| Parties | PASKA et al. v. SAUNDERS et al. |
| Court | Vermont Supreme Court |
Rehearing Denied Feb. 4, 1931.
COPYRIGHTED MATERIAL OMITTED.
Exceptions from Bennington County Court; John S. Buttles, Judge.
Action by Elizabeth Paska and Anna Paska Saunders against Bert H. Saunders and another. Nonsuit as to plaintiff last named, verdict for plaintiff first named against both defendants, and defendants bring exceptions.
Reversed and remanded.
Argued before POWERS, C. J., and SLACK, MOULTON, WILLCOX, and THOMPSON, JJ.
Edward J. Hall, of Bennington, for plaintiffs.
Collin M. Graves, of Bennington, and Walter S. Fenton, of Rutland, for defendants.
Action of tort for the conversion of 21 head of cattle. Pleas, the general issue, and a release. Replication, that the release was procured by fraud and duress. Trial by jury. Nonsuit as to Anna Paska Saunders, and verdict for Elizabeth Paska against both defendants for compensatory and exemplary damages. The defendants excepted.
The plaintiff Elizabeth is the widow of Tony Paska. Anna Paska Saunders is her daughter by a former marriage. Both are Lithuanians.
The plaintiff Elizabeth, and her husband, Tony Paska, occupied a farm belonging to the defendant Saunders, upon which they carried on the business of dealing in milk. After the death of Tony Paska, Saunders took the cattle in question from the possession of the plaintiff, and later sold them to the defendant Greenberg at private sale. No administration was taken out upon Tony Paska's estate until after the commencement of this action.
Some years before Tony Paska's death, Saunders sold him 13 cows, and took a chattel mortgage covering them to secure the purchase price, a part of which had been paid at the time the cattle here in question were taken from the plaintiff. The proceeds of the private sale were applied upon the note, leaving a balance due.
Seven of the cows taken were among those covered by the chattel mortgage. As to certain others, the defendants offered to show by the testimony of Saunders that, after the chattel mortgage had been executed, it was orally agreed between Saunders and Tony Paska that the latter might sell such of the mortgaged cattle as he wished, provided he replaced them with cattle of equal kind and value, title to which should remain in Saunders in lieu of those sold. The offered testimony was excluded, and the defendants excepted.
Such a verbal security would be valid at common law as between the parties, and, if no rights of third persons had intervened, upon the seasonable taking possession by the mortgagee of the property covered by the mortgage, it would be good and valid as against all persons, and would relate back to the time of its making. Gilfillan's Adm'r v. Bixby, 100 Vt. 468, 471, 139 A. 250. The effect of the offered agreement would be a waiver of the security of the mortgage so far as the purchasers from Tony Paska were concerned. Reed v. Rowell, 100 Vt. 41, 43, 134 A. 641. As regarded the subsequently purchased cattle, it would be a verbal mortgage, separate and distinct from the written one already in existence, and so there is no question here as to the modification of a sealed instrument (for such was the chattel mortgage) by a subsequent verbal agreement. See Hill v. Scott, 101 Vt.' 356, 362, 143 A. 276.
The subject for inquiry is the competency of Saunders to testify to the transaction with the deceased, Tony Paska. By G. L. 1891, in actions of this nature, where one of the parties to the contract or cause of action in issue and on trial is dead, the other party cannot be admitted to testify in his own favor except to meet or explain the testimony of living witnesses produced against him. This section and the one next following it are exceptions to the general rule of competency; and in their origin they were provisos of a statute having for its object the removal and not the creation of disqualifications, and hence a construction should be given to them which inclines towards competency (In re Bugbee's Will, 92 Vt. 175, 181, 102 A. 484, 486), although the construction must be a reasonable one, having in mind the fraudulent practices against which the statute was designed to guard (Hopkins Trustee, v. Sargent's Estate, 88 Vt. 217, 220, 92 A. 14). The term "other party" as used in the statute, refers to the other party to the original contract or cause of action, and not necessarily to the other party to the record (Hopkins, Trustee, v. Sargent's Estate, supra); and the words "contract in issue" are the same in meaning as "contract in dispute" or "in question," and relate as well to the substantial issues made by the evidence as to the merely formal issues made by the pleadings (Pember v. Congdon, 55 Vt. 58, 59; Merrill v. Pinney, 43 Vt. 605, 606; Hollister v. Young, 42 Vt. 403, 408). The restriction in the statute applies equally whether the surviving party is plaintiff or defendant in the action. Johnson, Adm'r v. Dexter, 37 Vt. 641, 645.
The exception in the statute which makes the surviving party a competent witness to meet or explain testimony of living witnesses produced against him permits him to testify to such affirmative facts as have a tendency to meet and destroy such testimony. Gilfillan v. Gilfillan's Estate, 90 Vt. 94,101, 96 A. 704. He may testify not alone to meet and explain the facts testified to by the witness, but also any legitimate inference deducible therefrom. In re Bugbee's Will, supra. As is said in the case last cited:
Here the testimony of living witnesses had shown the possession of the cattle in question by the plaintiff, and a taking, apparently without justification, by Saunders.
His offered testimony as to the verbal mortgage therefore had a tendency to meet and explain that which was produced against him, and therefore he was a competent witness under the statute. The exclusion of the evidence was error.
It is not amiss to say, in order to avoid any misapprehension, that Rickard v. Dana, 74 Vt. 74, 52 A. 113, Farrington v. Jennison, 67 Vt. 569, 32 A. 641, Hall v. Hamblett, 51 Vt. 589, and Pember v. Congdon, 55 Vt. 58, all authorities apparently opposed to what we have said, were decided before the enactment of the statute in its present form. No. 64, Acts 1908, now G. L. 1891.
The defendants also offered to show, by Saunders, that, when he sold the cattle to Tony Paska, and before the written chattel mortgage covering them was executed, it was orally agreed between them that the title should remain in him until they were paid for, and excepted to the exclusion of this testimony. But no error appears, for whatever verbal agreement there may have been to this effect was merged in the subsequently executed chattel mortgage.
Ward L. Lyons was called as a witness by the defendants, and testified without objection that he was the administrator of Tony Paska's estate. Thereafter the defendants offered a certified copy of the letters of administration, which were excluded subject to exception. No question seems to have been made as to the fact that Mr. Lyons was administrator, appointed subsequently to the commencement of this action. So the defendants had the substantial benefit of the excluded evidence. Cummings v. Ins. Co., 101 Vt. 78, 83, 142 A. 82. Assuming its materiality harmful error does not appear.
On cross-examination, the plaintiff was asked: "On or about last Thanksgiving were you confined in the Federal Court?" The question was excluded subject to exception by defendants. The offer was to show that she was arrested on a warrant charging her with the illegal possession of intoxicating liquor, and that the release was given by her in consideration of Saunders going her bail. The court ruled that this was a matter properly to be brought out as a part of the defendant's case. In this there was no error. The order of proof lies in the discretion of the court. Titus v. Gage, 70 Vt. 13, 15, 39 A. 246; Meserve v. Folsom, 62 Vt. 504, 511, 20 A. 926; Chamberlin v. Fuller, 59 Vt. 247, 252, 9 A. 832. The contrary not appearing, we assume that the ruling was made as a matter of discretion. Slack v. Bragg, 83 Vt. 404, 412, 76 A. 148; State v. Fairbanks, 101 Vt. 30, 34, 139 A. 918; Parizo v. Wilson, 101 Vt. 514, 523, 144 A. 856. No abuse thereof is affirmatively shown, and so the ruling will not be disturbed. Parizo v. Wilson, supra.
The testimony was also offered as impeachment. But proof of an arrest merely is not admissible to discredit a witness, even though a party. State v. Sanderson, 83 Vt. 351, 353, 75 A. 961; State v. Hodgdon, 89 Vt. 148, 150, 94 A. 301, and cases cited.
So, too, no error appears in the exclusion of certain questions on the cross-examination of Anna Paska Saunders. Although she was, at that time, a party plaintiff, the ruling was that the subject-matter of the inquiry was a part of the defendant's case and should be brought out after the plaintiffs had rested. No prejudice seems to have resulted from the ruling and we perceive no abuse of discretion.
It was claimed by the plaintiff that she did not know the contents of the release when she signed it. She was unable to read English. Anna Paska Saunders who read and spoke both English and Lithuanian, testified that she did not read it to her mother as the defendants claimed she had done. On cross-examination she was asked when she first told her attorney that she had not read the release to her mother. The question was excluded, and the defendants excepted. But all that the defendants say as to the exception in their brief, after quoting what...
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