Hopkins v. Fowler , 39 Me. 568 ( 1855 )

Cutting1, J.

— On a careful examination of u all the testimony presented to the jury,” we are unable to perceive, that 4ho plaintiff had any knowledge of the existence of any mortgage or security from Lewis Hopkins to the defendant to indemnify him against his liability as a co-surety on the note; or that the plaintiff “ intentionally neglected to inform the defendant that he had paid the note.” Prom the evidence, it does not appear, that the plaintiff was under any legal obligation to give such information, for he could not have anticipated any loss to the defendant from his neglect to do so. It seems, that the defendant was led into an error (if any there was,) by his conversations with Lewis Hopkins, for which the plaintiff was not legally responsible, they having been made without his knowledge. If the defendant saw fit to rely on such declarations, without ascertaining their truth from the plaintiff, and in consequence thereof surrendered his security, it only shows a misplaced confidence in the person whom he had aided, and for which the plaintiff was in no way accountable. The possession of the note by Lewis Fowler, at the time it was exhibited to the defendant, is accounted for without impeaching the motives of the plaintiff. Consequently the instructions of the presiding Judge, although perhaps true as abstract propositions, were erroneous when applied to the evidence in this case. They must have been called forth upon an assumption of some testimony to warrant them, and if the assumption was erroneous, the instructions became a superstructure without a foundation, and might have had some tendency to mislead the jury.

On the other hand, if the instructions were correct, the verdict is clearly against evidence, and should be set aside on the motion. On the whole we are inclined to sustain both the exceptions and motion.

Verdict set aside.

New trial granted.

Tenney and Appleton, J. J., concurred. Shepley, C. J., did not concur.