Blodgett Paper Co. v. Farmer , 41 N.H. 398 ( 1860 )

FowleR, J.

The only questions submitted to the jury, as found by the case, were, whether the knives and plates in controversy were delivered to the plaintiffs by Kennedy & Co., and received by the plaintiffs, in good faith to the creditors of Kennedy & Co., as part of the plaintiffs’ engines and as their property, or whether Kennedy & Co., in good faith, toward their creditors, assented and allowed the plaintiffs to take or hold possession of the knives and plates as their own property and part of their engines.

It appears from the case that the knives and plates were in the actual custody and possession of the plaintiffs, and were taken therefrom by the defendant, so that the only questions really submitted to the jury must have been, whether, in good faith, Kennedy & Co. intended to deliver, • and the plaintiffs understood they were receiving, the knives and plates as their own and part of their engines, or whether Kennedy & Co., in like good faith, intended to allow and assent to the plaintiffs’ taking and retaining possession of the knives and plates as belonging to them and part of their engines. These questions, for the want of, or notwithstanding the direct testimony of the parties to the transactions, must have been peculiarly matters of probability, to be determined by the conduct and acts of the parties and all the surrounding circumstances. Every thing connected with the transactions between the parties calculated to throw any light upon the probable motives by which their conduct might be governed; every thing tending to show the relations existing between them, and the feelings naturally likely to influence their action, in the absence of, or in conflict with the direct testimony on the subject, would be competent on the question of actual bond fide intention. If Kennedy & Co., while in the occupation of the premises, had improved their comparative condition generally, aside from the particular machinery for renewing which the articles in question were designed, they would be far less likely designedly to appropriate and set apart and delivei’, or assent that the plaintiffs should retain, those articles to renew the machinery to which they were adapted, than if no such general comparative improvement had taken place. So, too, if Kennedy & Co. had been imposed upon and deceived by the plaintiffs as to the quantity or value of the paper at Chicago, for which they bad given tbeir notes, they would be far less likely to be disposed to yield to tbe plaintiffs any advantage in tbe matter of tbe repair or renewal of their engines, than if no such occasion for complaint bad arisen.

We are of opinion, therefore, that tbe evidence in relation to tbe comparatively improved general condition of tbe mill and machinery, other than that for which tbe •knives and plates were designed, as well as that relating to tbe deficiency of paper purchased and paid for at Chicago, was properly admitted.

Tbe case finds that Frost had been engaged in tbe manufacture of paper for twenty-two years, and was employed as foreman to superintend tbe business of Kennedy & Co. We think there can be no doubt that be must be regarded as 'prima facie an expert, whose opinion, on all questions of science or skill connected with tbe business in which he bad been so long engaged, was competent to be weighed by tbe jury. Tbe admissibility of the subject matter of bis testimony has already been considered. Gr. Bv.,- sec. 440, notes and authorities.

Tbe question proposed to Selden, and bis answer thereto, do not seem to us open to tbe slightest objection. He bad the best possible means of knowledge on tbe subject as to which be was inquired of; and bis reply was simply, that be was not aware — bad no knowledge — that there existed any occasion for new engine bars and bed plates. Tbe interrogatory called for bis knowledge, and, if truthful, be was bound to give it, if be bad any. He simply said be bad none. This does not seem to us to be giving bis opinion in any way. It is merely tbe statement of a negative fact.

Tbe testimony of Duxbury was either competent as tending to contradict that of Straw on a material point, or it was simply immaterial so far as Straw’s testimony was concerned, and not calculated to excite prejudice, and therefore its admission not a cause for disturbing tbe verdict.

If Straw bad testified, as seems probable, tbat tbe portions of tbe mill to wbicb tbe testimony of Duxbury related were in good condition and repair when Kennedy & Co. took possession, tben tbat testimony bad a tendency to contradict bim. If be bad not so testified, tben tbe testimony of Duxbury, unless competent, upon tbe general grounds before adverted to, as bearing upon tbe comparative condition of tbe mill at tbe time Kennedy & Co. took possession and when they left it, was entirely immaterial and irrelevant; but, not being calculated to prejudice tbe plaintiffs in any way tbat we can perceive, its improper admission would furnish no ground for setting aside tbe verdict. Winkley v. Foye, 28 N. H. 519; S. C. ,33 N. H. 171; Center v. Center, 38 N. H. 318.

Tbe objections taken upon tbe trial must therefore be all overruled, and judgment be rendered upon tbe verdict.