Wheeler v. Thomas

• Decision Date: 05 June 1896
• Court: Connecticut Supreme Court
• Parties: WHEELER v. THOMAS.

35 A. 499

67 Conn. 577

WHEELER

v. THOMAS.

Supreme Court of Errors of Connecticut.

June 5, 1896.

Appeal from court of common pleas, New Haven county; Hotchklss, Judge.

Action by Herbert P. Wheeler against Frank L. Thomas. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles S. Hamilton, for appellant.

George A. Tyler, for appellee.

ANDREWS, C. J. The complaint in this action claimed to recover the balance due on a contract. The answer admitted the contract, and the balance as stated in the complaint, but alleged an accord and satisfaction, viz. that one Wallace W. Ward was on the 16th day of May, 1890, indebted to the defendant in a greater sum than the amount due on said contract which debt the defendant on said day assigned to the plaintiff, and the plaintiff accepted the same in full payment and satisfaction of the balance due on said contract. This assignment and acceptance the plaintiff denied. There was a trial to the jury upon the issue so formed, and the plaintiff had a verdict The defendant has appealed.

It appears that the only witness before the jury, other than the parties themselves, was the said Ward, who was called by the defendant. The court finds that, since the suit was brought Mr. Ward had had a serious illness, had suffered a paralytic shock, and that his mind and memory were very greatly impaired. There are ten reasons of appeal. Nine are from rulings in respect to the admission of evidence, and, of these, the decision of the court upon the first, fourth, fifth, sixth, and eighth are so clearly correct that no comment is necessary. The second and third reasons really present but one error. There was an error in point of form in the answer given by the witness Ward; but, under the circumstances disclosed in the case, it was within the discretion of the judge to allow the answer to stand. Besides, no possible harm could have been done to the defendant The seventh reason is that the judge erred in admitting certain testimony of the plaintifE concerning an order given by him upon the defendant to the J. Gibbs Smith Company. The evidence was admissible, because it tended to show that at that time the defendant made no claim that he had paid the plaintiff the balance due on the contract, by an assignment to him of the Ward debt The evidence showed conduct by the defendant inconsistent with the claim he was making in court The ninth reason of appeal was this: The defendant had called Mr. Ward as a witness, and he had...