Nutter v. King , 1890 Mass. LEXIS 74 ( 1890 )

Knowlton, J.

The assignment to the defendant was in terms for the benefit of such of the creditors of the assignor as should “ verbally or in writing assent ” to it. It was not necessary that their verbal assent should be express. Any language and conduct which, reasonably interpreted, affirmatively showed assent, was enough to answer the requirement of the instrument and to give it validity. The ruling of the court upon this part of the case was correct. May v. Wannemacher, 111 Mass. 202. Pierce v. O'Brien, 129 Mass. 314. Jones v. Tilton, 139 Mass. 418.

The court declined to instruct the jury, as requested by the plaintiff, that the statement in the answer of the defendant “ as trustee — ‘ that creditors amounting in value to more than the property in his hands assented to the assignment before the service of the plaintiff’s writ upon him, they were as follows’—was one fact, and that the testimony of creditors so named by said King that they did not so assent, is to one fact,” and the plaintiff excepted. In considering this exception, we must look to the principle of law in reference to which the request was made. It has been decided that, in a case of this kind, a defendant cannot be held for wilful false swearing on the unsupported testimony of a single witness to the fact in controversy. Laughran v. Kelly, 8 Cush. 199. The plaintiff in this case had but one witness to testify to any one specific fact. He therefore sought to bring himself within the law by treating the general statement of the defendant as a single fact, and calling a witness to contradict him on each of two elements which entered into the fact. If this statement were held to be a single fact, it would follow that no witness contradicted the defendant upon it, for neither of the witnesses could contradict the statement as a whole, nor testify to anything which, taken by itself alone, had any tendency to contradict it. But in reference to the purpose for which the ruling was asked, the statement is not to be considered as merely one fact. It is a statement of a result, or a fact, which by its very terms included many facts. An effectual contradiction of the defendant in regard to it would include a contradiction of all the elements of fact which are necessarily involved in it. It was as if the defendant had given the value of the property assigned, and the names of the creditors who assented, with the amounts .of their respective debts, and had stated the aggregate amount which was produced by adding the debts together, without other statement of the result. This clearly could not be treated as one fact. Moreover, the whole answer to this part of the question is to be considered together, and immediately following the words quoted appear in it the names of the assenting creditors, with the amount of the debt of each, and a particular statement in regard to the assent of Beiermeister and Spicer. The request for instructions was rightly refused.

The defendant was not injured by the expression “in the mind of Mr. King,” which appears in the charge. What the judge said upon this part of the case was given to the jury as the true interpretation of an answer in writing, and there was no improper expression of opinion.

Exceptions overruled.