Chesley v. Chesley , 37 N.H. 229 ( 1858 )

Fowler, J.

The first exception is to the ruling of the court below, that, in the condition of the pleadings, the plaintiff was entitled to open and close the case before the jury; and we think it cannot prevail.

Repeated adjudications recognize the general rule as well established in this State, that the burden of proof is upon the party who asserts the affirmative of an issue or proposition, and that he has the right to open and close in a trial before the court or jury. The same adjudications, however, recognize this modification of the general rule, that if the affirmative of any issue joined upon the pleadings is upon the plaintiff, he has the right to open the case to the jury, and make the closing argument. Belknap v. Wendell, 21 N. H., (1 Foster) 175 ; Seavey v. Dearborn, 19 N. H. 351; Thurston v. Kennett, 22 N. H. (2 Foster) 151; Buzzell v. Snell, 25 N. H. (5 Foster) 478 ; 1 Greenl. Ev., sec. 74; Howe’s Practice 251.

The same authorities also determine that, in considering which party is entitled to begin and close, it is not so much the form of the issues which is to be regarded, as the substance and effect of them — that the judge will consider what is the substantial fact to be made out on the trial, and on whom it lies to make it out, and if any thing is left for the plaintiff to show affirmatively, the right to commence and close is with him. Bills v. Vose, 27 N. H. (7 Foster) 215; Thurston v. Kennett, 22 N. H. (2 Foster) 151.

Applying the doctrines of these decisions to the pleadings before us, and the defendant’s statement under the statute must be regarded as his plea, there can be no doubt that the court properly ruled that the plaintiff was entitled to the advantage of opening and closing the case before the jury. The plaintiff claimed to recover the amount of the defendant’s two promissory notes for $3000 each, alleging that they were given as the consideration for a farm which the plaintiff, at their date, conveyed to the defendant. The commissioners found both notes to have been thus given, and one of them still due. The defendant, by the first clause of his statement, and the latter portion of the second clause, denied the plaintiff’s allegations as to both notes, asserting that neither of them w'as given as the consideration for the farm, but without any good or legal consideration whatever, and that nothing was due the plaintiff upon either of them when the action was commenced. This was in substance a denial of the plaintiff’s allegations in respect to both notes, and amounted, in effect — the statute requiring the verdict to be specifically on the facts put in issue by the statement — to nothing more nor less than the general issue; and the practice has always been for the plaintiff’s counsel to open and close, where the general issue is pleaded, whatever the nature of the controversy. Tappan v. Jenness, 21 N. H. (1 Foster) 232 ; Ayer v. Austin, 6 Pick. 225.

Upon these portions of the defendant’s statement, at least, the affirmative was upon the plaintiff to sustain the validity of the notes, by showing that they were given, as alleged, in consideration for the conveyance of the farm; and it was, therefore, on the authorities, wholly immaterial to the question of precedence, that, in the first part of the second clause of his statement, the defendant alleged an agreement by the plaintiff to surrender the notes up to him, to be cancelled, the burden of proving which must fall upon the defendant.

The second exception relates to the ruling of the court below, denying the defendant’s motion for a nonsuit, because the plaintiff rested his case before reading in evidence the report of the commissioners, and to the suggestion of the court, that if their report were not read to the jury by either party, the clerk would be directed to read it as prima facie evidence of the facts stated therein. As the plaintiff subsequently read the report in evidence, the consideration of this exception is of little importance, except as determining the rule of practice in trials upon commissioners’ reports.

The defendant’s motion would seem to have rested on the provisions of the statute in relation to trials to change the result of an auditor’s report, where it is said that the “ report shall be given in evidence to the jury, subject to be impeached by evidence offered by either party.” Revised Statutes, chap. 189, sec. 5 ; Comp. Laws, 490. But the act relating to commissioners contains no similar provision. It provides simply, that “ at the trial the report shall be primd facie evidence of the facts” stated in it, but does not require it to be given in evidence to the jury. "Where, as in the ease before us, neither party was satisfied with the finding of the commissioners, we can perceive no good reason why either should be compelled to offer it in evidence, or why the court should be bound to have it read to the juiy. In the absence of any statute provision on the subject, we do not see why the commissioners’ report, so far as relates to the use of it by the parties, does uot stand like any other independent piece of evidence, to be used by either party that may desire to lay it before the jury, or not to be used by either, at their election. Being made by the statute prima facie evidence of the facts stated in it, if either party chooses to offer it, it stands until impeached and overthrown by one side or the other. If both parties are dissatisfied with its findings, as the statute does not expressly require it, we can discover no good reason why either must necessarily use it, or the court cause it to be read in evidence to the jury, thereby subjecting both parties to the task of impeaching its conclusions before them. In the case of auditors, the legislature have provided that their report shall be given in evidence to the jury, while it is only provided that the reports of commissioners shall be 'prima facie evidence of the facts found by them. Unless controverted by the statements of the parties, and overthrown by the verdict of the jury specifically upon those statements, the commissioners’ report is to guide the court in the rendition of judgment, equally whether put in evidence before the jury or not.

In our opinion, therefore, the ruling of the court below denying the motion for a nonsuit and judgment, was correct, while their suggestion, that, if neither party offers the report of the commissioners in evidence, the clerk would be directed to read it to the jury, was erroneous. As the effect of this erroneous suggestion, however, was to induce the plaintiff to read the report to the jury, thus imposing upon himself the burden of impeaching its conclusions, so far as they conflicted with his evidence, it is evident the defendant cannot have suffered thereby, and there is no cause for disturbing the verdict on that account.

The third exception is to the ruling of the court permitting the plaintiff to introduce evidence, outside of the commissioners’ report of his testimony, as to the statement of Miles when testifying as a witness before the commissioners.

It is well settled in this State, that evidence showing that a witness has made statements substantially different from and inconsistent with his testimony given upon a trial, in regard to material matters, is admissible to affect his credit; and this, whether the witness has or has not been previously inquired of as to whether or not he ever made such statements. Martin v. Farnum, 25 N. H. (5 Foster) 195; Titus v. Ash, 24 N. H. (4 Foster) 319; Wiggin v. Plumer, 31 N. H. (11 Foster) 251; Flanders v. Davis, 19 N. H. 139.

If a witness’ statements, when not under oath, are competent to contradict or impeach his testimony on the trial, much more is his testimony, on a former hearing, available for the same purpose.

But the objection taken seems to have been, that the testimony of Miles, as reported by the commissioners, was the only competent evidence of what he stated on the hearing before them. This could hardly be so. The commissioners would undoubtedly design to write down and report the substance of what the witness testified before them, which they deemed material. But their report of the evidence, like the minutes of counsel, must necessarily be liable to errors and omissions. The fact that their report of the testimony did not contain the material statements attempted to be proved aliunde, would impose upon the plaintiff the burden of establishing their existence by clear and preponderating proof. The presumption, perhaps, was that the commissioners reported every thing material, and the defendant had the right, of which he availed himself, to introduce the testimony of the witness, as reported by the commissioners, to weigh against the plaintiff’s evidence aliunde. But it was competent for the plaintiff to rebut, by positive testimony to the contrary, any presumption arising from the commissioners’ report of the witness’ testimony before them, and to contradict him by showing that, when testifying before them, he made material statements, inconsistent with his testimony before the jury, although the commissioners had failed to report those statements.

The evidence to show the previous indebtedness of the defendant at the date of the conveyance of the farm to him by the plaintiff, was properly rejected. There is no presumption of law or of fact, that a person largely in debt will not contract new and further liabilities; indeed, all experience proves that the hope of being able thereby in some way to extricate themselves from prior indebtedness is one of the most frequent, as well as most powerful inducements to the incurring of additional liabilities by debtors.

The report of the commissioners, having been put in evidence by the plaintiff, and being made by the statute primd facie evidence of the facts found by it, if its findings were inconsistent with the testimony of witnesses before them, showed conclusively that they must either have disregarded the testimony of those witnesses, or that it must, in their judgment, have been overbalanced and overborne by conflicting evidence before them. In either event, the findings of the report were proper subjects of comment, in connection with the weight to be attached to the testimony of those witnesses before the jury. If there were, as seems probable, no conflicting testimony before the commissioners, the report of the commissioners was conclusive that they discredited them. If there were conflicting testimony, the report was equally conclusive that the commissioners regarded it as overbalancing and overthrowing that of these witnesses. At all events, the report, if it conflicted with the testimony of these witnesses before the jury, was entitled to be received and weighed by the jury as primd facie establishing the contrary positions. In any view, it was competent for the plaintiff’s counsel to comment upon and argue all the testimony in the case, and, if any portion of it conflicted with another, to insist that the existence of the former detracted somewhat from the weight and credit to be given to the latter.

That, as between the parties, a promissory note imports a consideration, and that this presumption is to stand until the contrary is shown, is too clear to admit of argument. Coburn v. Odell, 30 N. H. (10 Foster) 552; Horn v. Fuller, 6 N. H. 511; Adams v. Hacked, 27 N. H. (7 Foster) 293; 2 Starkie’s Ev. 280 ; Goshen Turnpike Company v. Hurtin, 9 Johnson 217.

The verdict in this case, being specifically on the facts put in issue by the statement of the defendant, agreeably to the provisions of the statute, (Comp. Laws 438, sec. 35) and completely negativing that statement, while it in no way conflicts 'with the findings of the commissioners, the ■ plaintiff is entitled to judgment on the report, notwithstanding the verdict for the amount of the $3000 note found due by the commissioners, after deducting therefrom the amount of the defendant’s account, as allowed by them, in offset. But he cannot have judgment for the amount of both notes, less the offset, because the commissioners have found that one of them was voluntarily given up by the plaintiff’ to the defendant to satisfy him, and the verdict does not conflict with the finding. Itis true,the jury have found that the two notes were originally given for the farm, and so did the commissioners. But the commissioners further found that one of them was voluntarily surrendered and given up to the defendant by the plaintiff, and destroyed, and there is nothing in the verdict to overthrow this conclusion. The commissioners’ report, therefore, stands, and, under the statute, the court are bound to regard its findings as correct, unless overthrown by the verdict. The plaintiff filed no statement controverting the finding of the commissioners as to the voluntary surrender of one of the notes, as she might and should have done, had she desired to overthrow it. No issue was submitted to the jury on that finding, as there would have been if the plaintiff, by her statement, had controverted it. It therefore stands uncontradicted, and, consequently, the plaintiff can only have judgment for the amount of one note, less the offset.

Judgment for the plaintiff on the report.