McCann v. Hallock , 30 Vt. 233 ( 1858 )

The opinion of the court was delivered by

Redeield, Ch. J.

I. We are not prepared to say there was no evidence tending to show that the plaintiff assented to and adopted the payment made to his son. It seems to us that the conversation detailed, and the form of the claim which the plaintiff made upon the defendant, did tend to show that the plaintiff intended to have the defendant understand that he did not repudiate the payment. And if he did not repudiate it, and made no claim upon the defendant except for the balance of his son’s earnings, it was equivalent to an adoption and ratification of the payment to the son, as far as it went. And this is the view in which the case seems to have been put to the jury; for although the judge uses the term “settlement,” the whole sentence, taken together, shows that he meant only the payment made at the time of the settlement with the son, for he expressly tells the jury not to give a verdict for the defendant, unless he had paid the full value of the services rendered by the son.

II. The most important question in the case, is in regard to the effect of the plaintiff’s silence when inquired of by Langdon whether he did not receive some of his son’s wages. It seems to be well settled in this state that the mere silence of a party, under ordinary circumstances, when a claim is made upon him, or he is asked a question in regard to his claims or pretensions in reference to a pending or expected litigation, is no ground of presuming against him. Mattocks v. Lyman, 16 Vt. 113; Gale v. Lincoln, 11 Vt. 152; Vail v. Strong, 10 Vt. 457.

But all the cases recognize some exceptions to this rule. When a man is charged with a breach of duty, personal or official, if innocent he is, ordinarily, expected to reply, and his silence does raise a presumption of guilt, more or less strong according to circumstances. So, too, when the inquiry is fairly and honestly made by a party having an interest in the question, with a view to regulate his own conduct. If, under such circumstances, the party inquired of knows, or has good reason to believe that his silence will induce the other party to act upon the silence as an affirmative answer, and he remains silent, he should be as much bound, perhaps, as if he had made a positive admission of the fact inquired after.

The great difficulty in the present case is, to know under what circumstances these inquiries were made. If made independently of all other conversation at the time, and for the purpose of obtaining evidence, it is certain that, upon the principle adopted in the cases already referred to, the plaintiff had the right to remain silent without being compromised thereby.

The case is entirely silent upon this point. The statement in the bill of exceptions is consistent with the view that nothing more was said at the time, and also consistent, as it seems to us, with the view that these inquiries were made of the plaintiff at the time of his stating his claim to the defendant, for it is stated that the defendant testified to the same inquiries and silence of the plaintiff, as did also Mr. Langdon. It is stated immediately in connection with the other part of the conversation, and it can only be determined by intendment and construction, whether it formed part of that conversation or not. But upon the familiar rule of construction in regard to bills of exceptions, that nothing is to be presumed against them with a view to predicate error upon any decision of the court there detailed, but that all fair and just constructions and intendments shall be made in favor of the decisions below, we feel bound to regard these inquiries as made at the same time the plaintiff made known the nature of his claim to the defendant. And if so, it seems to us that the defendant, from his peculiar situation, had a right to know whether the plaintiff wholly repudiated the payments made to his son, or only claimed that the amount was insufficient. This was certainly a very important matter for the defendant to know in order to regulate his conduct in regard to resisting the claim; and if the plaintiff, by his silence in connection with what hg did say, gave the defendant fairly to understand that he made no claim in regard to what had been paid his son, he should not now be allowed to put bis claim upon other grounds. And as the defendant had the right to make the inquiry and be informed of the fact, if he made the inquiry at a proper time and in a proper manner, and for the bona fide purpose of obtaining the knowledge which was necessary for his security, and the plaintiff, after having made a distinct claim for only what he denominated the balance of his son’s wages above what had been paid, and when inquired of whether he had not received part of his son’s wages, remained silent, it did fairly, as it seems to us, raise a presumption against him that he intended to adopt the payment to his son, as far as it went, and only claimed the balance. It does not appear that the court gave the testimony any greater effect than it was fairly entitled to have. In the case of Mattocks v. Lyman it was expressly held, that if the party consents to make any declarations upon the subject inquired after, he then makes all that is said to him on the occasion, and his silence as well as his answers, evidence to go to the jury, and they are to determine its weight. And that seems to be precisely this case, so that, upon both these grounds, the omission to give any reply to this particular inquiry seems to have been properly submitted to the jury as evidence.

Judgment is affirmed.