Herbert v. Ford , 33 Me. 90 ( 1851 )

Wells, J.

— This case has been previously presented to the Court for consideration. 29 Maine, 546. The testimony shows that the consideration of this note was the property of Doct. Clark. It does not appear that the plaintiff paid any thing for it, or that he was in any manner a holder for a valuable consideration. If there was no evidence in the case of its origin, a presumption might arise, that the plaintiff was a holder for value paid by him, but that presumption is entirely repelled by the fact, that the consideration belonged to Clark, who paid for the note whatever of value there was in it. It must then be regarded as the property of Clark, and the plaintiff as holding it in trust for his benefit. No instruction based upon the assumption that the note did not belong to Clark could have been properly given. And the instruction in relation to the knowledge of the plaintiff as to the consideration was immaterial. For if he did not own the note, and it was the property of Clark, then the defence could be made in the same manner as if the action were in the name of Clark, whether the plaintiff had knowledge of the nature of the consideration or not.

The jury had the right to determine the existence of the parol contract, its extent and limitations. - They are to find not only what language was used, but its purport and meaning. In cases of written contracts, it is the duty of the Court to define the meaning of the language used in them, but in verbal contracts such duty is confined to the jury. They are not barely to ascertain the words and forms of expression, but to interpret their sense and meaning. Copeland v. Hall, 29 Maine, 93.

■. There was testimony introduced by both parties in relation to the question of the consent of the defendant for the return of Clark to Bristol. If such consent had been given, it is very apparent, that the defendant could not have objected to his return by way of defence to this action. And the jury were so instructed. But in determining this question, they were directed to take into consideration all the testimony in relation to it, and not to confine their examination to those portions of the testimony which were embraced in the plaintiff’s request. The jury must regard the whole evidence upon any controverted point, and the request for instruction embracing but a part of that evidence and requiring a conclusion of the jury upon it, might have been very properly rejected. ■

• There does not appear to be any error in the instructions, nor in the qualification of the requested instruction, and the exceptions must be overruled and judgment rendered on the verdict. •