George v. Stubbs , 26 Me. 243 ( 1846 )

The opinion of the Court was prepared by

Sheplky J.

— The oxen claimed -by the plaintiff were taken by the defendant, a constable, as the property of Joseph Smith, on August 18, 1843, by virtue of a precept against him in favor of Lowell, a creditor. The plaintiff presented as evidence of his title a contract, bearing date on July 14,1841, and an indorsement made on it bearing date on July 8, 1842, both signed by Smith. The counsel for the defendant contends, ihat the property passed by that, contract to Smith without any proof of payment of the money, named in it. It is distinguishable from the class of cases alluded to in the argument. It is an agreement to sell the oxen on condition of receiving payment within a stipulated time; and differs from that, upon which the case of Dearborn v. Turner, 16 Maine R. ]7, was founded. The person, from whom the defendant in that case purchased, had an option to return the property, or pay for it within a stipulated time, secured to him by the contract.

Smith was introduced as a witness for the plaintiff. Counsel insists, that his testimony should have been excluded, because it appeared by other testimony in the case, that he was interested, and refers to the testimony of other witnesses proving his declarations, that if the case was lost it would ruin him. The decorations of a witness made to others, that he is interested in the event of a suit, do not prove him to be so, or that he is an incompetent witness. Another complaint is, that he was allowed to contradict or vary the contract in writing by his testimony. This does not appear to be correct. His testimony as stated, in the bill of exceptions, only narrates, so far as it relates to that contract, the circumstances under which it was made, and the time, when it was executed and the money paid.

To determine whether the instructions and other proceedings were correct, it will be necessary to examine the testimony exhibiting the dealings between the plaintiff and Smith. It shows, that the plaintiff bargained with Smith on May 8,1841, to sell him a farm or tract of land for $600, to be paid in six annual payments of $100, with interest; and gave him a bond to convey it upon payment thereof according to the agreement. That in the month of June following, Smith received a yoke of oxen of the plaintiff, and it would seem upon the terms contained in the contract afterward signed and dated on July 14, following. For the father of the plaintiff testified, that he wrote that paper at the request of his son, and according to his instructions, about the time, when Smith first took the oxen.

Jonathan Wood testified, that he bargained with Smith and paid him $95, for a lot of land on July 2, 1841. That this sum was paid by paying Smith $30, and by paying the plaintiff $25 cash, and $40 by a note payable in one year with interest. Were the oxen thus paid for on July 2, 1841 ? Smith states, that he never paid a cent to the plaintiff fór the oxen. Whether he meant more than to say, he never paid any thing from his own hand in money without denying, that he received pay in part, for a lot of land, by Wood’s paying $65 for them to the plaintiff, may not be quite clear. Wood says, that he told him, that he sold the land to buy the oxen, and would not have sold it so low, but for the sake of getting them. The first payment to the plaintiff for land would not become due for about ten months. Noah Eoane testified, that Smith told him, that he bought the oxen of the plaintiff. Other witnesses testified, that he said he bought them of the plaintiff and gave $65 for them. That was the sum agreed to be paid for them, and the sum which Wood paid to the plaintiff on July 2, for Smith. Solomon Hervey testified, that the plaintiff told him the latter part of June, 1842, that Smith had not paid the interest on his notes for the land, and Wood had not paid for the o.xen within ten or twelve dollars. Wood states, that he paid on the note of $40, given by him to the • plaintiff as part of the $65, on April 27, 1842, $30; and the remainder, three or four days after the note became due on July 2, 1842. Both of the plaintiff’s statements to Her-vey would be substantially correct, if the $65 were paid for the oxen; and both incorrect, if they were paid towards the land notes; Smith states, that he killed one of the oxen in December, 1841, and obtained another ox of his brother, for $33, paying partly by the proceeds of the ox killed and the residue out of his own property. That soon after he exchanged those two oxen, with Daniel Atwood, by the plaintiff’s advice, and paid $25, of his own money, for the exchange. Such dealing with the oxen, and such payments made from his own funds are inconsistent with the position, that the oxen were the property of the plaintiff; and consistent with the position, that the sum paid by 'Wood was received in payment, for them.

Is this aspect of the case materially changed by the written documents made between Smith and the plaintiff? The conveyance of the lot of land sold by Smith to Wood, was not made and executed until July J4, although payment had been made on July 2. On the day, when that conveyance was executed, the plaintiff gave Smith a receipt for the $65 received of Wood, “to be applied to his notes, which notes said Smith had given him for land, when called for.” This is not inconsistent with the idea, that it also paid for the oxen, for it was part of the agreement as exhibited in the written contract, that the sum paid for the oxen should also be applied in part payment towards the land. The contract, which had been prepared about the time, when the oxen were delivered to Smith, was executed on the same July 14; and provided, that the oxen should become the property of Smith upon payment of $65, on or before May 8, 1842; and Smith therein acknowledged, that he had borrowed them of the plaintiff. If the oxen had in fact been paid for, according to the terms of that contract, before it was signed and while the contract existed only in parol, the title to the oxen passed to Smith, and the execution of that paper, whatever might be its effect between the parties to it, could have no effect upon the title to the oxen, so far as it respects Smith’s creditors. That title, as it respects them, could not be transferred again to the plaintiff without the payment of a valuable consideration for it. And for a like reason, that there was no consideration paid for it, the writing indorsed on the back of the contract and signed by Smith on July 8, 1842, could not in such case transfer the title to the oxen, then in possession of Smith and obtained as before stated, to the plaintiff, so as to deprive Smith’s creditors of their rights. There was some testimony introduced by the defendant to show, that these arrangements between the plaintiff and Smith, so far as they had reference to the oxen, were designed to prevent their being taken by Smith’s creditors; . and the District Judge was requested to instruct the jury, “ that there was evidence tending to show, that the transactions relative to the oxen, between the plaintiff and Smith, were fraudulent as against Smith’s creditors.” This request was properly refused. It is the duty of the Court, on request, to instruct the jury, what the law applicable to the testimony is. It is not its duty to express an opinion on request as to the effect of that testimony, when it is contradictory, or as to its tendency to produce any particular result. The instructions, which were given, appear to have been founded upon the supposition that Smith could become the owner of the oxen only by proof “ that he had paid the sixty-five dollars in pursuance of the terms of the contract of July 14, 1841.” This the jury must have understood to mean in pursuance of or in performance of the written contract after its execution on July 14, 1841. It has already been stated, that the oxen might, according to the testimony, have become the property of Smith before that time, and these instructions therefore on being applied to the testimony in the case would be suited to mislead the ju>7-

Exceptions sustained and new trial granted.