Hamlin v. Philbrook ( 1916 )

If the words the parties used are given their ordinary meaning, the plaintiffs were entitled to the possession of the camp until it was appraised in accordance with the terms of the agreement and until the defendant had paid or tendered them the amount of the appraisal. If, therefore, the defendant's contention that a right to the possession of the property is necessary in order to maintain trover is sound — a question as to which no opinion is intended to be expressed — it can be found that the defendant converted the camp and its contents when he took possession of it as his property. Gore v. Watson, 61 N.H. 136. This disposes of the exception to the denial of his motion for a directed verdict and to the charge.

Even if there was no evidence to warrant counsel's statement in respect to the "benevolent millionaire," what was said furnishes no reason for disturbing the verdict; for the court instructed the jury not to consider the statement for any purpose unless there was evidence to sustain it, and it must be assumed the jury obeyed instructions.

The defendant's second and third exceptions were to statements criticising the defendant; and it is enough, in so far as these exceptions are concerned, to say that if the plaintiffs' evidence is to be believed the statements were unobjectionable. It was fair to ask the jury to find from the way the defendant got possession of the camp that he was attempting to get it without paying for it; also that the plaintiffs were justified in thinking that if they attempted to remove their property from the camp there was nothing he would hesitate to do to prevent it. In short, the reasonable conclusion to be drawn from the plaintiffs' evidence is that the defendant was attempting to cheat them and that there were no lengths to which he would not go to effectuate his purpose, and that is all counsel was asking the jury to find when he made the statements.

The defendant's fourth exception was to counsel's statement that, if they (the jurors) asked the defendant's attorney after the trial whether the camp became the defendant's property the instant the clock struck twelve on the night of August 13th, he would say, no. If it is conceded there is no evidence to warrant this statement, that furnishes no reason for disturbing the verdict; for as has already appeared the camp did not become the defendant's property at that time and had not become his property at the time of the trial and that was all counsel was asking the jury to find when he made this statement.

Exceptions overruled.

All concurred.