Keen v. Sprague , 3 Me. 77 ( 1824 )

Mellen, C. J.

delivered the opinion of the Court.

The case on the report presents three questions.

1. Was the plaintiff’s son properly admitted as a witness ?

2. Were the instructions of the Judge to the jury correct ?

3. Is the verdict against evidence or the weight of evidence ?

As to the first question, we see no reason to doubt the correctness of the decision, and this point has not been urged in the argument. The father never consented that his son, the witness, should labor for the defendant on his own account, and for his own benefit ; — and as this action is prosecuted by the father, who claims his son’s wages, it is clear that if the witness, had any' interest or bias on his mind, it must have been against that interest or bias that he testified. Of course this objection fails.

As to the second question — it appears that the fact was properly left to the jury, whether the defendant hired the plaintiff’s son without communicating to' him his connection with others, if there was any such connection ; and the jury have found that he did. They have thus found that the labor was done on the credit of the defendant, and in reliance on his promise to pay for it; — they have found that if the defendant was in fact the agent of others in making the contract, he did not act as such, or make his agency known until after the labor was performed. In such cases the promise binds the man who makes the contract. Sumner Adm’r. v. Williams 8 Mass. 198. Mauri v. Heffernan 13 Johns 58. Rathbon v. Budlong 15 Johns. 1.

With respect to the note given by Snow, it seems it was made payable to the plaintiff’s minor son, for the balance due for his labor ; according to the settlement made between them. This adjustment was made and the note received by the son without any authority from the father ; and on the son’s return, the father absolutely refused to receive it ; and it seems Snow is considered as insolvent. Under these circumstances it is clear the note never was sanctioned by the father ; and as he never received, it, he is not to suffer because it has not been returned to Snow ; and if the son has retained it. improperly, the father is no more answerable for that neglect, than lie was for his conduct in undertaking to discharge the original demand by taking the note of a man unable to pay it.

In addition to this, all the evidence which was offered to shew that the defendant took an undue advantage of the situation of the sou — a stranger in a strange land — at a great distance from his home and his friends, has been considered by the jury, who had a right to consider it, and, if they thought proper, to pronounce the defendant’s proceedings an imposition. Their verdict is satisfactory proof that in their opinion the note was given for the purpose of imposition, and that the plaintiff’s son was induced to receive it under the influence of that imposition. It is a satisfaction to us to find the law and equity of the case so perfectly agreed. The motion to set aside the verdict on account of the decision and instructions of the Judge cannot be sustained.

As to the motion for a new trial, at common law, on account of the verdict being against evidence, or greatly against the leeight of evidence, as alleged ; we need only say that the facts reported, do not, in our opinion, present any foundation on which such a motion can be supported — and the Judge who tried the cause has not certified to us any dissatisfaction with the verdict.

Neither do we feel disposed to disturb the verdict for the reasons alleged in the motion filed at the present term. The deposition of the witness varies only in one particular from his testimony on the stand ; in all others it is entirely consistent ; and is moreover supported by other witnesses who testified in the cause, and the whole was left to the jury. Besides, the counsel for the defendant knew of the existence and contents of the deposition, which was also on the files of the Court ; and in communicating the facts of the cause to the gentleman who argued it for him to the jury, it was incumbent on him to have stated this also.

Judgment on the verdict.